FLEX BV
OVERVIEW OF MOST IMPORTANT CHANGES TO LEGISLATION ON
DUTCH BVs;
CURRENT AND NEW RULES COMPARED
AND OVERVIEW TRANSITIONAL LAW
(ENTERING INTO FORCE AS PER 1 OCTOBER 2012)
This document is intended to provide an overview of the most important changes to legislation on private companies with limited liability incorporated under
the laws of the Netherlands, taking effect as per 1 October 2012, and of the applicable transitional law. It is not intended to be comprehensive, nor to provide
legal advice. Should you have any questions, please contact one of your regular contacts at Linklaters.
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Topic
Current legislation
Flex BV (as per 1 October 2012)
Minimum capital
At least EUR 18,000 must be issued and paid up.
No longer a requirement.
Authorised capital
Obligatory.
Optional.
States limit up to where shares can be issued without
having to amend the articles of association.
Unchanged.
At least 20% of the authorised capital must be issued.
No longer a requirement.
Must be denominated in euro (in old articles of association
it can still be denominated in Dutch guilders).
Can be denominated in a currency other than euro (only
one type of currency can be stated in the articles of
association).
Can be put in maximum two decimals.
Can be put in more than two decimals (except when the
nominal value is still stated in Dutch guilders).
Main rule: The full nominal value of each share must be
paid upon subscription.
Unchanged.
Postponement of payment:
Postponement of payment:

Postponement of the obligation to pay for shares
will be allowed for three quarters of the nominal
value of the shares.

Postponement of the entire obligation to pay for
shares will be allowed.

Postponement can be granted until the BV requests
for the payment to be made.

Postponement can be granted until the BV
requests for the payment to be made, or for a
certain period of time.
Capital
Nominal value
Capital protection rules
Obligation to pay for shares
upon issuance
Managing directors are jointly liable for any legal acts
performed in the time before the obligation to pay for shares
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Rule is cancelled.
Topic
Payment in cash
Contribution in kind
Current legislation
Flex BV (as per 1 October 2012)
has been satisfied and before the paid up capital at least
equals the minimum capital.
Note: The rule that managing directors are jointly liable
for legal acts performed in the period between
incorporation of the BV and its registration with the Dutch
Trade Register will still apply.
A bank statement must be issued. When payment is made
in a currency other than euro, the bank statement must
include a statement on the exchange rate.
No longer a requirement.
Payment in currency other than euro: To determine if the
obligation to pay has been satisfied, the exchange rate on
the day of payment, or, if payment was made earlier than a
month before incorporation, the exchange rate on the day
of incorporation, shall be decisive.
Payment in currency other than currency of the nominal
value of shares according to articles of association: To
determine if the obligation to pay has been satisfied, the
exchange rate on the day of payment shall be decisive.
Description:
Description:

A description of the contribution to be made must be
prepared by the incorporators (in case of
incorporation) or by the managing directors of the
BV to which a contribution is to be made (in case of
contribution after incorporation).

Unchanged.

Description will be valid for a period of five months.

Description will be valid for a period of six
months.

A new description must be prepared if the value
of the contribution to be made has considerably
decreased since the date to which the description
pertains.
Accountant’s certificate: Required.
Accountant’s certificate: No longer required. Also no
longer required when an NV is converted into a BV and
when a BV is a party to a statutory demerger in capacity
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Topic
Current legislation
Flex BV (as per 1 October 2012)
of acquiring company.
Distributions
Balance sheet test:
Balance sheet test and distribution test:


Balance sheet test: Distributions on shares may
be made only insofar as the amount of the BV’s
equity exceeds the aggregate of the reserves
which must be maintained pursuant to the laws of
the Netherlands or the articles of association.

Distribution test: The management board must
assess whether the BV will after the distribution
still be able to continue to pay its payable debts.
See hereinafter under ‘Authority’.
Distributions on shares may be made only insofar
as the amount of the BV’s equity exceeds the
aggregate of the paid and called up part of the
capital and the reserves which must be maintained
pursuant to the laws of the Netherlands or the
articles of association.
Authority:
Authority:


General meeting, unless the articles of
association provide that another corporate body
is authorised.

A resolution to make a distribution on shares will
have no effect for as long as the management
board has not granted its approval thereto. The
management board shall only refuse to grant the
approval if it knows or should reasonably foresee
that the BV will after the distribution has been
made no longer be able to continue to pay its
payable debts.
General meeting, unless the articles of association
provide that another corporate body is authorised.
Period of foreseeability: the customary period for
what a person should know or should reasonably
foresee is one year.
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Topic
Current legislation
Flex BV (as per 1 October 2012)
Sanctions:
Sanctions:

Nullity: If the provisions on distributions on shares
are not observed, a resolution to make a distribution
will be null and void and the beneficiary of the
relevant distribution must reimburse the distributed
amount as having been unduly paid, regardless of
whether he is in good faith or not.

Liability: based on established case law: Supreme
Court 8 November 1991, NJ 1992, 174 (Nimox) and
Supreme Court 6 February 2004, JOR 2004/67
(Reinders/Didam).

Liability (the new rules are aimed at codifying the
established case law referred to in the column on
the left):

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The managing directors/actual
policymakers will be jointly liable for the
deficit resulting from the distribution, with
the statutory interest accrued from the
day of the distribution, if the BV after the
distribution has been made is no longer
able to continue to pay its payable debts
and the managing directors/actual
policymakers should have known or
foreseen that at the time of the
distribution. Possibility of exculpation for
managing director/actual policymaker
who proves that he cannot be blamed for
the fact that the distribution has been
made and that he has not been negligent
in taking measures to avert the
consequences.
Topic
Current legislation
Flex BV (as per 1 October 2012)

The beneficiary of the distribution who is
not in good faith must reimburse the
deficit up to a maximum of the amount or
the value of the distribution received by
him, with the statutory interest accrued
from the day of the distribution. If
managing directors/actual policymakers
have paid the amount due, the
beneficiary of the distribution must make
the reimbursement to the managing
directors/actual policy makers, in
proportion.
Computation basis for the appropriation of profits:
Computation basis for the appropriation of profits:

Own shares: For the computation of distributions,
shares held by the BV in its own capital shall be
taken into account, unless the articles of association
provide otherwise.

Own shares (the reverse of the old rule): For the
computation of distributions, shares held by the
BV in its own capital shall not be taken into
account, unless the articles of association
provide otherwise.

Amount to be taken into account: For the
computation of the amount to be distributed on each
share, only the amount of the obligatory payments
on the nominal value of the shares shall be taken
into account, unless the articles of association
provide otherwise.

Amount to be taken into account: For the
computation of the amount to be distributed on
each share, only the amount of the obligatory
payments on the nominal value of the shares
shall be taken into account, unless the articles of
association provide otherwise or all shareholders
consent to deviation from this rule in respect of
each distribution. A provision in the articles of
association to deviate from the main rule shall
require the consent of all holders of shares
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Topic
Current legislation
Flex BV (as per 1 October 2012)
whose rights the amendment of the articles of
association is detrimental to.
Entitlement to profits/reserves:
Entitlement to profits/reserves:

The profits shall accrue to the shareholders, unless
the articles of association provide otherwise.

Shareholders cannot be entirely excluded from
sharing in the profits.

The articles of association can provide that
shares of a certain class or specification shall
give no or only limited entitlement to profits and
reserves. To include such provision in the articles
of association shall require the consent of all
holders of shares whose rights the amendment of
the articles of association is detrimental to.
In respect of shares with no or only limited entitlement to
profits and reserves:
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
In order for a share with no entitlement to profits
and reserves at all to qualify as a share, voting
rights must be attached to it.

Pre-emptive rights upon issuance of shares:
Holders of shares with no entitlement to profits
and reserves do not have pre-emptive rights
upon issuance of shares and shareholders do not
have pre-emptive rights upon issuance of shares
with no entitlement to profits and reserves, unless
the articles of association provide otherwise.
Topic
Repurchase
Current legislation
Flex BV (as per 1 October 2012)

Share transfer restrictions, rights of first refusal
system: Holders of shares with no entitlement to
profits and reserves will as a main rule only be
offered shares with no entitlement to profits and
reserves, unless the articles of association
provide otherwise.

Compensation upon conversion, statutory merger
or statutory demerger:

Upon conversion of a BV into an NV,
each holder of shares with no entitlement
to profits who has not consented to the
resolution to convert the BV into an NV,
can file a request for compensation.

If, upon a statutory merger or statutory
demerger, the acquiring company or the
group company granting shares is not a
BV, each holder of shares with no
entitlement to profits who voted against
the proposal to effect the statutory merger
of demerger can file a request for
compensation.
Articles of association: Articles of association must
specifically provide that shares can be repurchased.
Articles of association: Articles of association no longer
have to specifically provide that shares can be
repurchased. The articles of association can exclude or
limit the possibility to repurchase shares.
Limitation on the number of shares that can be
repurchased: A maximum of 50% of the issued capital can
Limitation on the number of shares that can be
repurchased: At least one share with voting rights shall
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Topic
Current legislation
Flex BV (as per 1 October 2012)
be repurchased.
be held by a person other than and other than for the
account of the BV or one of its subsidiaries.
Balance sheet test:
Balance sheet test and distribution test:

Repurchase of shares is only allowed insofar as the
amount of the BV’s equity, less the acquisition price,
exceeds the aggregate of the paid and called up
part of the capital and the reserves which must be
maintained pursuant to the laws of the Netherlands
or the articles of association.

Balance sheet test: Repurchase of shares is only
allowed insofar as the amount of the BV’s equity,
less the acquisition price, exceeds the aggregate
of the reserves which must be maintained
pursuant to the laws of the Netherlands or the
articles of association.

The validity of the acquisition shall be decided on
the basis of the amount of equity appearing from the
last adopted balance sheet. Repurchase of shares
shall not be permitted if more than six months have
elapsed after the end of a financial year without the
annual accounts having been adopted.

Distribution test: The management board must
assess whether the BV will after the repurchase
still be able to continue to pay its payable debts.
See hereinafter under ‘Authority’.
Authority:
Authority:


The management board is authorised to adopt a
resolution to repurchase shares.
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The management board is authorised to adopt a
resolution to repurchase shares. The
Topic
Current legislation
Flex BV (as per 1 October 2012)
management board shall not resolve that the BV
shall repurchase shares if it knows or should
reasonably foresee that the BV will after the
repurchase no longer be able to continue to pay
its payable debts.
Period of foreseeability: the customary period for
what a person should know or should reasonably
foresee is one year.

The repurchase must be authorised by the general
meeting (or other corporate body as designated in
the articles of association or by the general
meeting).

The management board of a BV must consent to
an acquisition of shares in the capital of that BV
by a subsidiary in order for such acquisition to be
valid. The statutory rules on a repurchase of
shares shall apply to an acquisition of shares in
the capital of a BV by a subsidiary. Managing
directors of the BV will only be liable to the BV
(and not to the relevant subsidiary also) for a
deficit, if any (see hereinafter under ‘Liability’).

No longer required that the general meeting
authorises the repurchase as well. The articles of
association can provide otherwise.
Sanctions:
Sanctions:


Nullity: A repurchase in violation of the statutory
rules shall be null and void.
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Nullity: A repurchase at the expense of reserves
which must be maintained pursuant to the laws of
the Netherlands or the articles of association or in
violation of an exclusion or a limitation of the
possibility to repurchase shares provided for in
the articles of association shall be null and void.
Topic
Current legislation
Flex BV (as per 1 October 2012)


Liability:

The managing directors will be jointly liable
to a transferor who is in good faith and who
suffers damages as a result of the nullity of
a repurchase.
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Liability:

Unchanged: The managing directors will
be jointly liable to a transferor who is in
good faith and who suffers damages as a
result of the nullity of a repurchase.

The managing directors/actual
policymakers will be jointly liable for the
deficit resulting from the repurchase, with
the statutory interest accrued from the
day of the repurchase, if the BV after the
repurchase is no longer able to continue
to pay its payable debts and the
managing directors/actual policymakers
should have known or foreseen that at
the time of the repurchase. Possibility of
exculpation for managing director/actual
policymaker who proves that he cannot
be blamed for the fact that the repurchase
has been effected and that he has not
been negligent in taking measures to
avert the consequences.

The transferor of the shares who is not in
good faith must reimburse the deficit up
to a maximum of the amount or the value
of the acquisition price received by him,
with the statutory interest accrued from
the day of the repurchase. If managing
directors/actual policymakers have paid
Topic
Current legislation
Flex BV (as per 1 October 2012)
the amount due, the transferor of the
shares must make the reimbursement to
the managing directors/actual policy
makers, in proportion.
Reduction of issued capital
Cancellation of shares:
Cancellation of shares:

All shares held by the BV or for which the BV holds
the depositary receipts.

All shares held by the BV or for which the BV
holds the depositary receipts.

All shares of a certain class, with the consent of all
holders of the relevant class of shares or provided it
has been stipulated in the articles of association
prior to the issuance of such shares that they can
be cancelled with repayment.

All shares of a certain class or specification,
provided it has been stipulated in the articles of
association prior to the issuance of such shares
that they can be cancelled with repayment.

Individual shares, with the consent of the
shareholder(s) concerned.
Limitation on the number of shares that can be cancelled:
The issued capital cannot be reduced below the required
minimum capital and at least 20% of the authorised capital
must be issued.
Limitation on the number of shares that can be
cancelled: At least one share with voting rights shall be
held by a person other than and other than for the
account of the BV or one of its subsidiaries.
Procedure for raising objection: A resolution to effect a
capital reduction must be deposited at the Dutch Trade
Register and the deposit must be announced in a nationally
distributed newspaper. During two months after the
announcement, each creditor of the BV can raise objection
to the resolution to effect the capital reduction. A resolution
to effect a capital reduction will only take effect if no
objection was raised or, if objection was raised timely, if
such objection was withdrawn or the termination of the
objection is enforceable.
Procedure for raising objection no longer exists. Instead,
the rules on management board approval, the rules on
the balance sheet test and the distribution test and the
rules on liability, as are applicable to distributions on
shares, also apply to capital reduction with repayment.
See under ‘Distributions’, under ‘Balance sheet test and
distribution test’, under ‘Authority’ and under ‘Sanctions’,
‘Liability’. The provisions on the balance sheet test, as
applicable in respect of distributions on shares, also
apply to a capital reduction with discharge from the
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Topic
Current legislation
Flex BV (as per 1 October 2012)
obligation to pay for shares.
Transitional law: If a resolution to reduce a BV’s issued
capital was adopted before the new rules entered into
force, the old rules will remain applicable to such capital
reduction (regardless whether the resolution was already
deposited at the Dutch Trade Register at the time the
new rules entered into force).
Nachgründung
Financial assistance
Certain formalities (approval general meeting, description of
property to be acquired, accountant’s certificate) must be
met in case of acquisition of property by a BV within two
years after registration of that BV with the Dutch Trade
Register, in case the relevant property belonged to an
incorporator or shareholder of the BV a year before
incorporation of the BV or after that.
Rule is cancelled.

Rule is cancelled.

It is prohibited to provide financial assistance by
giving security or guaranteeing the price with a view
to a subscription for or an acquisition of shares by
third parties.
Loans with a view to a subscription for or an
acquisition of shares by third parties may only be
granted up to an amount of the freely distributable
reserves, provided the articles of association allow
for such loans to be granted.
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Note: The general rules that apply to acting by the
management board and management board liability,
such as the rules on proper fulfilment of duties and ‘actio
pauliana’, remain applicable.
Note: The general rules that apply to acting by the
management board and management board liability,
such as the rules on proper fulfilment of duties and
conflict of interest, remain applicable.
Topic
Current legislation
Flex BV (as per 1 October 2012)
Transferability: It is prohibited to freely transfer shares. The
articles of association must provide for share transfer
restrictions for any transfer of shares (can be a prior
approval system, a rights of first refusal system of a
combination of both). One exception to this rule is the
possibility to freely transfer shares to a certain - limited group of persons as defined by law (see hereinafter under
‘Group of persons to which shares can be freely
transferred´).
Transferability: The prohibition to freely transfer shares
no longer exists. Options in respect of share transfer
restrictions:
Share transfer restrictions,
shareholder obligations
Share transfer restrictions

Applicability of the statutory rights of first refusal
system, and applicability of the statutory
provisions on price determination (this will apply if
the articles of association do not provide
otherwise).

Exclusion of transferability for a certain period of
time. To introduce such provision in the articles of
association will require the consent of all holders
of shares to which the exclusion of transferability
shall apply.

Another system to restrict the transferability of
shares than referred to above, possibly with
provisions on price determination that deviate
from the statutory provisions.

Free transferability.
Court declaring the share transfer restrictions
inapplicable: In case of executor attachment, bankruptcy,
statutory debt restructuring scheme for an individual,
issuance of a bequest, allocation from a community of
property or a right of pledge, the court can declare the
statutory rights of first refusal system or the provisions in
the articles of association in relation to transferability of
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Flex BV (as per 1 October 2012)
shares wholly or partly inapplicable. The court will only
grant a request thereto if the interests of the applicant
require so particularly and the interests of other parties
will not be affected disproportionately.
Determination of price: A shareholder who so wishes is
entitled to receive a price, equal to the value of his share(s),
set by one or more independent experts.
Determination of price: The statutory price determination
system remains unchanged. The share transfer
restrictions included in the articles of association can
provide for another system to determine the price, but
such provision in the articles of association cannot be
imposed on a shareholder against his will.
Group of persons to which shares can be freely transferred:
Statutory provision providing that shares can be freely
transferred to a certain - limited - group of persons (spouse
or registered partner, relations by blood or affinity in the
ascending or descending line without limitation and in the
collateral line to the second degree, a co-shareholder and
the BV itself).
Group of persons to which shares can be freely
transferred: This provision is cancelled. It will be possible
to define a group of persons to which shares can be
freely transferred in the articles of association (no
statutory limitations applicable anymore).
Transitional law: If a transfer of shares will be effected
after the new rules have entered into force, such shares
can still be freely transferred to the group of persons to
which shares could be freely transferred under the old
rules, provided the shares were offered for transfer
before the new rules entered into force.
Obligations
Obligations, other than the obligation to pay the nominal
value for a share, can not be imposed on a shareholder
against his will, not even by amendment of the articles of
association.
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The articles of association can, with respect to all shares
or shares of a certain class or specification, provide that
undertakings under the law of obligations, towards the
BV or third parties or between shareholders, are
Topic
Current legislation
Flex BV (as per 1 October 2012)
attached to being a shareholder.
Such obligations, as well as an obligation to meet certain
qualification criteria or an obligation to offer and transfer
shares, cannot be imposed on a shareholder against his
will.
Binding force in respect of new shareholder:

A new shareholder shall as a main rule be bound
to an obligation as laid down in the articles of
association.

However: if a transfer of shares by a shareholder
who is not bound by the relevant obligation is
impossible or extremely difficult, the relevant
shareholder can request that the BV shall
designate interested parties to whom he can
transfer all his shares pursuant to a provision laid
down in the articles of association. If the BV has
not designated such interested parties within a
certain period of time, the shareholder can
transfer his shares to another party and in such
case that other party will also not be bound to the
obligation.
Entering into force of or exemption from obligation: The
articles of association can determine that the entering
into force of a provision imposing an obligation on (a)
shareholder(s) shall depend on the adoption of a
resolution by a corporate body designated thereto in the
articles of association and that a corporate body
designated thereto in the articles of association can grant
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an exemption from such obligation.
Determination of the price in case of an obligation to offer
and transfer shares: A shareholder who so wishes is
entitled to receive a price, equal to the value of his share(s),
set by one or more independent experts.
Determination of the price in case of an obligation to offer
and transfer shares: The statutory price determination
system remains unchanged. The share transfer
restrictions included in the articles of association can
provide for another system to determine the price, but
such provision in the articles of association cannot be
imposed on a shareholder against his will.
Main rule: Each shareholder shall have at least one vote,
and the number of votes that a shareholder is entitled to
cast shall be proportionate to his entitlement to the issued
share capital.
Unchanged.
Deviation from the main rule, such as a system of
degressive voting rights or a system of absolute limited
voting rights are in principle - to a limited extent - allowed.

It is possible to include a provision in the articles
of association that deviates from the main rule.
Such rule will then apply to every resolution to be
adopted by the general meeting; it is not possible
to differentiate voting rights for different types of
resolutions.

A resolution to amend the articles of association
as a result of which the voting rights will be
amended can only be adopted by unanimous
vote in a meeting where the entire issued capital
of the BV is represented.
Voting rights and depositary
receipts
‘Flexible’ voting rights
Non-voting shares
Not applicable.
The articles of association can, in respect of all shares of
a certain class or specification, provide that no voting
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Flex BV (as per 1 October 2012)
rights in the general meeting are attached to them. Such
provision in the articles of association can only be
included with the consent of all holders of shares of the
relevant class or specification or if it has been stipulated
in the articles of association prior to the issuance of the
relevant shares that no voting rights will be attached to
them.
Note: Holders of non-voting shares do have meeting
rights. In addition, non-voting shares must have (at least
some) entitlement to profits and reserves in order to
qualify as a share.
In the articles of association and in the shareholders’
register of the BV, shares to which no voting rights are
attached shall be referred to as ‘non-voting shares’.
Non-voting shares shall not be taken into account when
determining to what extent shareholders vote, are
present or represented, or to what extent the share
capital is provided or represented. The laws of the
Netherlands state some exemptions to this main rule.
Pre-emptive rights upon issuance of shares: Holders of
non-voting shares do not have pre-emptive rights upon
issuance of shares and shareholders do not have preemptive rights upon issuance of non-voting shares,
unless the articles of association provide otherwise.
Share transfer restrictions, rights of first refusal system:
Holders of non-voting shares will as a main rule only be
offered non-voting shares, unless the articles of
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Flex BV (as per 1 October 2012)
association provide otherwise.
Compensation upon conversion, statutory merger or
statutory demerger:
Depositary receipts and
meeting rights
Distinction is made between depositary receipts issued with
a BV’s cooperation and depositary receipts issued without a
BV’s cooperation.

Upon conversion of a BV into an NV, each holder
of non-voting shares who has not consented to
the resolution to convert the BV into an NV, can
file a request for compensation.

If, upon a statutory merger or statutory demerger,
the acquiring company or the group company
granting shares is not a BV, each holder of nonvoting shares can file a request for
compensation.
The distinction between depositary receipts issued with a
BV’s cooperation and depositary receipts issued without
a BV’s cooperation no longer exists. Instead, distinction
will be made between depositary receipts to which
‘meeting rights’ are attached and to which ‘meeting rights’
are not attached.
Statutory definition of ‘meeting rights’: The right to, either
in person or by written proxy, attend the general meeting
and to speak therein.
It can be unclear whether a depositary receipt was issued
with a BV’s cooperation. It is relevant to know whether a
depositary receipt was issued with a BV’s cooperation as
certain rights, such as meeting rights and the right to
receive certain information, accrue to holders of depositary
receipts issued with a BV’s cooperation.
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The uncertainty whether a depositary receipt was issued
with a BV’s cooperation or not no longer exists: meeting
rights can only be attached to depositary receipts if the
articles of association provide for that.
The rights accruing to holders of depositary receipts to
which the meeting rights are attached are equal to the
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Flex BV (as per 1 October 2012)
rights that under the old rules accrued to holders of
depositary receipts issued with a BV’s cooperation.
Provisions in the articles of association, two options:

The articles of association provide that meeting
rights are attached to depositary receipts. A
provision in the articles of association that
meeting rights are attached to depositary receipts
can only be amended with the consent of the
holders of depositary receipts concerned, unless
the authority to amend the relevant provision was
expressly stipulated in the articles of association
at the time the meeting rights were granted.

The articles of association provide that the
decision to grant and take away meeting rights
shall be made by a corporate body, designated
thereto in the articles of association.
Acknowledgement/serving of deed of transfer: The
meeting rights can only be exercised by a holder of
depositary receipts after the BV has acknowledged the
transfer of the relevant depositary receipts or after the
deed of transfer of the relevant depositary receipts has
been served upon it.
Shareholders’ register: The data of the holders of
depositary receipts to which the meeting rights are
attached must be entered into the shareholders’ register.
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Transitional law:

The BV must as soon as possible, but ultimately
within one year after the new rules have entered
into force have recorded the holders of
depositary receipts that were issued with the BV’s
cooperation in its shareholders’ register, stating
that they are holders of depositary receipts to
which the meeting rights are attached. Until this
has been done, notice of general meetings must
be given to the relevant holders of depositary
receipts in accordance with the old rules, see
under ‘General Meeting’, under ‘Convocation’,
‘Form of convocation’.

With the first amendment of the articles of
association following the entering into force of the
new rules, a provision should be included in the
articles of association to the effect that meeting
rights are attached to depositary receipts that
were issued with the BV’s cooperation prior to the
entering into force of the new rules.
General Meeting
Annual Meeting
During each financial year at least one general meeting
shall be held, within six months after the end of the financial
year.
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21
During each financial year at least one general meeting
shall be held or at least one resolution shall be adopted
without holding a meeting.
Topic
Current legislation
Flex BV (as per 1 October 2012)
Annual accounts and release from liability:
Annual accounts and release from liability:
In practice is it assumed that the annual accounts will be
adopted by a resolution adopted in the annual general
meeting. Adoption of the annual accounts will not
automatically result in release from liability being granted, a
separate resolution is required thereto.

The annual accounts can be adopted by a
resolution adopted in a general meeting or by a
written resolution, adopted without holding a
meeting. Adoption of the annual accounts will not
automatically result in release from liability being
granted, a separate resolution is required thereto.

If all shareholders of a BV are also managing
directors of that same BV, signing of the annual
accounts by all managing directors and
supervisory directors shall also be considered as
adoption of the annual accounts (provided all
other persons with meeting rights have been
given the opportunity to consider the prepared
annual accounts and have consented to this way
of adoption), and shall result in a release of the
managing directors from liability for the
management pursued and a release of the
supervisory directors from liability for their
supervision.
Note: All managing directors and all supervisory
directors must sign. The rule that if the signature
of one or more of them is missing this shall be
stated and reasons for this omission shall be
given, does not apply in this case.
Convocation
Authorisation to convene a meeting: Shareholders, alone or
jointly representing in the aggregate at least one-tenth of
the issued capital, may request the court to be authorised to
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22
Authorisation to convene a meeting: Shareholders, alone
or jointly representing in the aggregate at least onehundredth of the issued capital, may request the court to
Topic
Convocation period
Current legislation
Flex BV (as per 1 October 2012)
convene a general meeting. The request to the court must
be preceded by a request to the management board and
the supervisory board, who subsequently did not see to it
that a general meeting could be held within six weeks after
the request was made.
be authorised to convene a general meeting. The request
to the court must be preceded by a request to the
management board and the supervisory board, who
should then see to it that a general meeting can be held
within four weeks after the request was made, unless
important interests of the BV dictate otherwise.
Form of convocation:
Form of convocation:

A notice convening the meeting shall be sent to the
addresses of the shareholders shown in the BV’s
shareholders’ register.

In respect of holders of depositary receipts issued
with the BV’s cooperation, notice must be given in a
nationally distributed newspaper, unless the articles
of association provide otherwise.
A notice convening the meeting shall be sent to the
addresses of the shareholders and the other persons
with meeting rights (pledgees, usufructuaries and holders
of depositary receipts, to which the meeting rights
accrue) shown in the BV’s shareholders’ register.
Content convocation not complete: Valid resolutions of the
general meeting in respect of items that were not included
in the convocation with due observance of the convocation
period may only be adopted by unanimous vote in a
meeting where the entire issued capital of the BV is
represented.
Content convocation not complete: Valid resolutions of
the general meeting in respect of items that were not
included in the convocation with due observance of the
convocation period may only be adopted if all persons
with meeting rights have consented to the decisionmaking taking place and the managing directors and the
supervisory directors have been given the opportunity to
give advice prior to the decision-making.
Minimum period for convening a general meeting is fifteen
days prior to the day of the meeting.
Minimum period for convening a general meeting is
shortened to eight days prior to the day of the meeting.
Transitional law: The new statutory convocation period
applies to all meetings held from the moment the new
rules enter into force.
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23
Topic
Current legislation
Flex BV (as per 1 October 2012)
Note: If the articles of association state the convocation
period in days, the period stated in the articles of
association should be observed.
Place general meeting
If the convocation period was not observed or if no notice
convening the meeting was sent at all, valid resolutions of
the general meeting may only be adopted by unanimous
vote in a meeting where the entire issued capital of the BV
is represented.
If the convocation period was not observed or if no notice
convening the meeting was sent at all, valid resolutions
of the general meeting may only be adopted if all
persons with meeting rights have consented to the
decision-making taking place and the managing directors
and the supervisory directors have been given the
opportunity to give advice prior to the decision-making.
General meetings are held in the Netherlands, in the place
stated in the articles of association or, if the articles of
association do not state anything, in the municipality in
which, according to the articles of association, the BV has
its official seat.
General meetings are held in the place stated in the
articles of association or, if the articles of association do
not state anything, in the municipality in which, according
to the articles of association, the BV has its official seat.
The place stated in the articles of association can also be
a place outside the Netherlands.
In a general meeting held elsewhere valid resolutions may
only be adopted if the entire issued capital of the BV is
represented.
In a general meeting held elsewhere valid resolutions
may be adopted, provided that all persons with meeting
rights have consented to the place of the meeting and
the managing directors and the supervisory directors
have been given the opportunity to give advice prior to
the decision-making.
A resolution to amend the articles of association, such
that a provision shall be included that general meetings
can be held in a place outside the Netherlands, may only
be adopted by unanimous vote in a meeting where the
entire issued capital of the BV is represented and
provided all persons with meeting rights have consented
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24
Topic
Current legislation
Flex BV (as per 1 October 2012)
to the amendment of the articles of association.
Adoption of resolutions
without holding a meeting
Only possible if the articles of association expressly allow
for resolutions to be adopted without holding a meeting.
It is no longer required that the articles of association
expressly allow for resolutions to be adopted without
holding a meeting.
Not allowed if in respect of the BV there are persons to
whom the rights conferred by the laws of the Netherlands
upon holders of depositary receipts issued with a BV’s
cooperation accrue.
Adoption of resolutions without holding a meeting is also
allowed if there are persons with meeting rights, other
than just the shareholders, provided with due observance
of the statutory requirements.
Shareholders may adopt resolutions of the general meeting
without holding a meeting, provided they are adopted by
unanimous vote of all shareholders entitled to vote. The
votes must be cast in writing.
In order for a resolution of the general meeting adopted
other than in a meeting to be valid, it is required that all
persons with meeting rights have consented to this
manner to adopt a resolution and that the managing
directors and the supervisory directors have been given
the opportunity to give advice prior to the decisionmaking. If these requirements are met, the resolution can
be adopted by the majority required pursuant to the laws
of the Netherlands or the articles of association, so
unanimity is not always required. The votes must be cast
in writing.
Amendment of articles of
association
Detrimental to rights: A resolution to amend the articles of
association that is specifically detrimental to any right of
holders of shares of a certain class or specification
requires a resolution of the relevant group of
shareholders granting approval for such amendment,
unless the authority to amend the relevant provision was
expressly stipulated in the relevant provision in the
articles of association at the time the relevant right was
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25
Topic
Current legislation
Flex BV (as per 1 October 2012)
granted.
This applies without prejudice to any other requirement
to obtain consent for such amendment pursuant to the
laws of the Netherlands.
Unanimous votes required, entire issued capital
represented:
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26

Resolution to amend the articles of association,
such that a provision shall be included that
general meetings can be held in a place outside
the Netherlands.

Resolution to amend the articles of association
as a result of which the provisions on voting
rights will be amended.

Resolution to amend the articles of association,
such that a provision shall be included that
managing directors/supervisory directors can be
appointed by a meeting of holders of shares of a
specific class or specification, instead of by the
general meeting.

Resolution to amend the articles of association,
such that a provision shall be included that
supervisory board directors can be pointed by a
third party.
Topic
Current legislation
Flex BV (as per 1 October 2012)
Consent required of shareholders/holders of depositary
receipts concerned:
//
27

Including provision in articles of association on
exclusion of transferability of shares for a certain
period of time.

Including provision in articles of association
entailing that discharge from the obligation to pay
for shares or repayment on shares upon a capital
reduction can occur only with respect to shares of
a certain class or specification and not only in
respect of all shares (consent is not required if
such provision was already included in the
articles of association before issuance of the
shares of the relevant class or specification).

Including provision in articles of association that
deviates from the main rule that for the
computation of the amount to be distributed on
each share, only the amount of the obligatory
payments on the nominal value of the shares
shall be taken into account.

Including provision in articles of association that
shares of a certain class or specification shall
give no or only limited entitlement to profits and
reserves.

Amendment of provision in the articles of
association that meeting rights are attached to
depositary receipts (consent is not required if the
authority to amend the relevant provision was
Topic
Current legislation
Flex BV (as per 1 October 2012)
expressly stipulated in the articles of association
at the time the meeting rights were granted). The
same applies to amendment of provisions on
meeting rights accruing to pledgors and
usufructuaries.

Including provision in articles of association that
no voting rights in the general meeting are
attached to all shares of a certain class or
specification (no consent required if it has been
stipulated in the articles of association prior to the
issuance of the relevant shares that no voting
rights will be attached to them).
Shareholders not bound against their will:

Including provision in articles of association that,
with respect to all shares or shares of a certain
class or specification, undertakings under the law
of obligations, towards the BV or third parties or
between shareholders, are attached to being a
shareholder.

Including provision in articles of association that
deviates from statutory price determination
system.
Management Board
Instruction right
The articles of association may provide that the
management board must comply with instructions regarding
the general lines of the policy fields as further specified in
the articles of association, to be given by another corporate
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28
The articles of association may provide that the
management board must act in accordance with specific
instructions of another corporate body. The management
board must comply with the instructions, unless they are
Topic
Appointment
Binding nomination
Current legislation
Flex BV (as per 1 October 2012)
body.
not in accordance with the interests of the BV and the
business connected with it.
Authority: Managing directors are appointed by the general
meeting.
Authority: As a main rule, managing directors are
appointed by the general meeting. It is however possible
to provide that managing directors are appointed by a
meeting of holders of shares of a specific class or
specification, provided that each shareholder entitled to
vote can take part in the decision-making with respect to
the appointment of at least one managing director. A
resolution to amend the articles of association as a result
of which a provision as referred to in the previous full
sentence will be included in the articles of association
can only be adopted by unanimous vote in a meeting
where the entire issued capital of the BV is represented.
Note: This does not apply to a company to which the ‘full
large company regime’ applies: for such companies the
managing directors are appointed by the supervisory board.
Note: This does not apply to a company to which the ‘full
large company regime’ applies: for such companies the
managing directors are appointed by the supervisory
board.
A binding nomination must consist of at least two
candidates for each vacancy.
The requirement that a binding nomination must consist
of at least two candidates for each vacancy, is cancelled.
If a nomination comprises of one candidate for the
vacancy, a resolution on the nomination will result in the
relevant person being appointed, unless it has been
resolved that the nomination shall not be binding.
Suspension and dismissal
A managing director can always be suspended or
dismissed by the person authorised to appoint the relevant
managing director.
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29
A managing director can always be suspended or
dismissed by the corporate body authorised to appoint
the relevant managing director. The articles of
Topic
Current legislation
Flex BV (as per 1 October 2012)
association can provide that a managing director can
also be dismissed by another corporate body.
Vacancy or inability to act
Note: This does not apply to a company to which the ‘full
large company regime’ applies: for such companies the
managing directors are suspended and dismissed by the
supervisory board.
Note: This does not apply to a company to which the ‘full
large company regime’ applies: for such companies the
managing directors are suspended and dismissed by the
supervisory board.
The articles of association must include a provision for the
situation where a seat on the management board is vacant
or managing directors is/are unable to perform his/their
duties.
The articles of association must include a provision for
the situation where a seat on the management board is
vacant or one or more managing directors is/are unable
to perform his/their duties.
The articles of association can further specify when a
managing director is deemed unable to perform his
duties.
Supervisory Board
Appointment
Authority: Supervisory directors are appointed by the
general meeting.
Authority: As a main rule, supervisory directors are
appointed by the general meeting. It is however possible
to provide that supervisory directors are appointed by a
meeting of holders of shares of a specific class or
specification, provided that each shareholder entitled to
vote can take part in the decision-making with respect to
the appointment of at least one supervisory director. A
resolution to amend the articles of association as a result
of which a provision as referred to in the previous full
sentence will be included in the articles of association
can only be adopted by unanimous vote in a meeting
where the entire issued capital of the BV is represented.
Note: Specific rules apply to companies to which the ‘large
Note: Specific rules apply to companies to which the
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30
Topic
Binding nomination
Current legislation
Flex BV (as per 1 October 2012)
company regime’ applies.
‘large company regime’ applies.
A binding nomination must consist of at least two
candidates for each vacancy.
The requirement that a binding nomination must consist
of at least two candidates for each vacancy, is cancelled.
If a nomination comprises of one candidate for the
vacancy, a resolution on the nomination will result in the
relevant person being appointed, unless it has been
resolved that the nomination shall not be binding.
Suspension and dismissal
A supervisory director can always be suspended or
dismissed by the person authorised to appoint the relevant
supervisory director.
A supervisory director can always be suspended or
dismissed by the person authorised to appoint the
relevant supervisory director. The articles of association
can provide that a supervisory director can also be
dismissed by the general meeting.
Note: Specific rules apply to companies to which the ‘large
company regime’ applies.
Note: Specific rules apply to companies to which the
‘large company regime’ applies.
Vacancy or inability to act
The articles of association must include a provision for
the situation where a seat on the supervisory board is
vacant or one or more supervisory directors is/are unable
to perform his/their duties.
The articles of association can further specify when a
supervisory director is deemed unable to perform his
duties.
Transitional law: With the first amendment of the
articles of association following the entering into force of
the new rules, a provision on vacancy or inability to act
for supervisory directors should be included in the
articles of association.
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31
Transitional law
General rules
Main rule: Immediate effect.
In respect of existing rights the new rules will not have retroactive effect, no new rights will be created as a result of the new rules entering into force.
Reference to old statutory rules/repetition of the wording of old statutory rules in articles of association: Reference in the articles of association to a statutory
rule or repetition of the wording of a statutory rule that is no longer effective upon the new statutory rules entering into force, will be deemed to be a
reference to the new statutory rule or repetition of the wording of the new statutory rule, unless that would not be in accordance with the purpose of the
relevant provision in the articles of association.
As a result, various provisions in the articles of association will need interpretation, and in order to do so the literal wording of the provision will be given
great weight. Meaning will be given to the fact that reference to or repetition of the wording of a statutory rule is often only included to enhance the userfriendliness of the articles of association. But it may have been the intention of parties to keep the ‘old’ rule included regardless of what the new rules say. In
legal literature the general view seems to be that reference to or repetition of statutory provisions on capital protection will hardly ever have been included to
have a meaning other than enhancing user-friendliness of the articles of association. This is different for provisions on authority of corporate bodies. It can
be concluded that it is recommendable to amend the articles of association after the new rules have entered into force, in order to enhance legal certainty.
Pending legal proceedings: The new rules will as a main rule not affect the authority of the court, the nature of the proceedings and the available legal
remedies.
Validity of legal acts performed under the old rules:

Valid and inviolable under the old rules:
A legal act that was valid and inviolable under the old rules will remain the same under the new rules, even if the relevant legal act would be null and
void or voidable under the new rules.

Voidable under the old rules:

A legal act that was voidable under the old rules will become valid and inviolable under the new rules if the legal act would be valid and
inviolable under these new rules.
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32
Transitional law


A legal act that was voidable under the old rules and would be null and void under the new rules, will become null and void with retroactive
effect.
Null and void under the old rules:

A legal act that was null and void under the old rules and would be valid and inviolable under the new rules will with retroactive effect become
valid and inviolable under these new rules, provided the interested parties will have considered the legal act valid before the new rules
entered into force.

A legal act that was null and void under the old rules and would be voidable under the new rules, will become valid under the new rules
provided the interested parties will have considered the legal act valid before the new rules entered into force, but the relevant legal act will
then be voidable.
Prescription of possibility to invoke the nullity of a legal act: If under the new rules a person would be entitled to invoke the nullity of a legal act and a similar
ground for nullity could be invoked under the old rules, a prescription term of three years will apply, starting after the moment on which under the old rules
the nullity could be invoked.
Damages: As a main rule the old rules will apply if damages were incurred before the new rules entered into force. If it is unclear when the damages were
incurred it will be decisive if the damages were known before or after the new rules entered into force.
Transitional rules on specific topics

Capital reduction: If a resolution to reduce a BV’s issued capital was adopted before the new rules entered into force, the old rules will remain
applicable to such capital reduction (regardless whether the resolution was already deposited at the Dutch Trade Register at the time the new rules
entered into force).

Share transfer restrictions, group of persons to which shares can be freely transferred: If a transfer of shares will be effected after the new rules have
entered into force, such shares can still be freely transferred to the group of persons to which shares could be freely transferred under the old rules,
provided the shares were offered for transfer before the new rules entered into force.

Depositary receipts with meeting rights:

The BV must as soon as possible, but ultimately within one year after the new rules have entered into force have recorded the holders of
depositary receipts that were issued with the BV’s cooperation in its shareholders’ register, stating that they are holders of depositary receipts
to which the meeting rights are attached. Until this has been done, notice of general meetings must be given to the relevant holders of
//
33
Transitional law
depositary receipts in accordance with the old rules, see under ‘General Meeting’, under ‘Convocation’, ‘Form of convocation’.


With the first amendment of the articles of association following the entering into force of the new rules, a provision should be included in the
articles of association to the effect that meeting rights are attached to depositary receipts that were issued with the BV’s cooperation prior to
the entering into force of the new rules.
Convocation period general meeting: The new statutory convocation period applies to all meetings held from the moment the new rules enter into
force.
Note: If the articles of association state the convocation period in days, the period stated in the articles of association should be observed.

Vacancy or inability to act provisions for supervisory directors: With the first amendment of the articles of association following the entering into force
of the new rules, a provision on vacancy or inability to act for supervisory directors should be included in the articles of association.

Liability statement and contribution in kind: The statutory provisions on withdrawal of a liability statement and termination of residual liability will
remain applicable in respect of liability statements that were deposited at the Dutch Trade Register in connection with an exemption of the obligation
to prepare a description and to have an accountant’s certificate issued in respect of a contribution in kind at or after incorporation of a BV.
//
34