Aksjonæravtale: hvilke klausuler trengs?

A shareholders’ agreement (aandeelhoudersovereenkomst) is a private contract that regulates how the shareholders of a company take decisions, fund the company and leave it. Dutch law does not require one, but as soon as a private limited company (BV) has more than one shareholder, it is the most effective way to prevent a costly dispute; the main exception is that it cannot override the articles of association (statuten) towards the company.

Without an agreement, you depend on the articles and the default rules of Book 2 of the Dutch Civil Code (BW), such as the offer obligation in Article 2:195 BW and the statutory dispute resolution scheme in Articles 2:336 to 2:343c BW. This article explains how the agreement relates to the articles, which clauses it should contain, and what you should check as a majority or minority shareholder.

Why do you need a shareholders’ agreement?

It answers in advance the questions that cause disputes: what happens when a shareholder wants to leave, dies, stops contributing or blocks decisions. The default rules of Book 2 BW rarely fit a specific company.

In the first years, founders usually agree on everything. Problems arise later, when one founder wants to stop, an investor wants to sell or two 50% shareholders block each other. Investors and banks will usually ask to see the agreement during due diligence, so a clear agreement also makes it easier to raise money.

How does it differ from the articles of association?

The articles are public and bind the company and all its shareholders; the shareholders’ agreement is private and binds only the parties who signed it. Where the two conflict, the articles prevail towards the company.

The articles are laid down in a notarial deed and filed with the Dutch Chamber of Commerce (KVK). Under Article 2:231 BW, the general meeting can amend them, and the articles may make that harder, for example by requiring a larger majority. A shareholders’ agreement is a contract, so as a rule it can only be changed with the consent of all parties.

A resolution taken in line with the articles is generally valid, even if it breaches the shareholders’ agreement. The shareholder who is harmed then has a contractual claim against the other parties, for example for damages or a penalty. That is why transfer restrictions, drag-along and tag-along and deadlock rules are best reflected in both documents, and why you should check both whenever one of them changes.

Which clauses belong in a shareholders’ agreement?

At minimum: the parties, funding, rights and obligations, decision-making, share transfers, drag-along and tag-along, and dispute resolution. The sections below explain each clause.

Hvem er partene?

The agreement lists the shareholders and their shareholdings, and usually the company itself is a party too, so that it is bound as well. It should state how new shareholders join, typically by signing an accession deed, and on which conditions a shareholder leaves, for example on death, incapacity, divorce or bankruptcy.

How will the company be funded?

This clause sets out whether the company is financed with new equity, shareholder loans or bank debt, and whether shareholders must provide personal guarantees. Record what each shareholder has contributed and whether there is any obligation to contribute more. Also agree what happens if a shareholder does not take part in a capital increase, since that dilutes their stake.

What are the rights and obligations of each shareholder?

The agreement specifies voting rights, dividend entitlement, information rights and duties such as confidentiality, non-compete and non-solicitation. Under Article 2:192 BW, the articles of a BV can also attach obligations to shareholdership, such as a duty to offer shares in defined situations. Such an obligation cannot be imposed on an existing shareholder against their will.

Hvordan tas beslutninger?

The agreement lists the decisions that need shareholder approval, the majority required and how conflicts of interest are handled. A minority shareholder can negotiate a veto on specific decisions, such as issuing new shares or selling the business. With two shareholders holding 50% each, add a deadlock clause: an independent third party who decides, mediation, or a buy-sell clause in which one shareholder offers to buy out the other at a set price.

On which terms can shares be transferred?

Dutch law contains a default rule. Under Article 2:195 BW, a BV shareholder who wants to sell must first offer the shares to the other shareholders in proportion to their holdings, unless the articles provide otherwise.

Many companies replace this with their own offer or approval scheme. The agreement should state how the price is set, for example by an independent valuer, and the period within which the other shareholders must respond. Under Article 2:196 BW, every transfer of BV shares requires a notarial deed executed before a civil-law notary in the Netherlands, so an agreed sale is completed only at the notary.

What are drag-along and tag-along clauses?

These clauses apply when a buyer wants to acquire the company. Both work best if they are also reflected in the articles.

• Drag-along: a majority shareholder can require the minority to sell their shares to a third-party buyer on the same terms.
• Tag-along: a minority shareholder can join a sale by the majority on the same terms.

A drag-along protects the majority against a small shareholder blocking a sale of 100% of the shares. A tag-along protects the minority against being left behind with a new majority shareholder they did not choose.

Hvordan løses tvister?

The agreement should provide for mediation, binding advice or arbitration, and state how a dispute is started, which time limits apply and which law and forum apply. Under Article 2:337(2) BW, the articles or an agreement may even refer expulsion and exit disputes to arbitration.

Which Dutch rules apply if there is no contractual solution?

The company is governed by Book 2 BW, while the agreement itself is a contract under general contract law. Under Article 2:8 BW, the company and the shareholders must treat each other in line with reasonableness and fairness (redelijkheid en billijkheid).

If shareholders cannot resolve a dispute, Book 2 offers a statutory dispute resolution scheme (geschillenregeling). Since 1 January 2025, these cases are heard by the Enterprise Chamber (Ondernemingskamer) of the Amsterdam Court of Appeal. Under Article 2:336a BW, shareholders holding at least one third of the issued capital can demand that a shareholder whose conduct harms the company transfers their shares (expulsion). Under Article 2:343 BW, a shareholder whose rights or interests are seriously harmed by fellow shareholders can demand that they, or the company, buy their shares (exit).

The court appoints experts to set the price, which adds time and cost. Under Article 2:337(1) BW, a contractual scheme cannot make the transfer of shares impossible or extremely difficult. A clear contractual exit route is usually faster and cheaper than the statutory procedure.

Hvilke feil bør du unngå?

Most problems come from vague wording and from situations nobody foresaw. Review the agreement at least when a shareholder joins or leaves, or when the company raises capital.

• Clauses that conflict with the articles, for example a transfer ban in the agreement while the articles allow free transfer.
• No arrangements for death, incapacity, divorce or bankruptcy of a shareholder.
• No valuation method, so every exit starts with a dispute about the price.
• No deadlock clause in a 50/50 company.
• No dispute resolution clause, which leaves only proceedings before the courts.

What should you check as a majority shareholder or founder?

Your priority is to keep control and to be able to sell the company. Check the following:

• whether a drag-along clause lets you deliver 100% of the shares to a buyer, and whether it is also in the articles;
• which decisions require minority consent and whether those vetoes are limited to fundamental matters;
• whether a departing shareholder must offer their shares, at which price and within which period;
• whether non-compete and confidentiality duties bind shareholders who leave;
• whether a deadlock clause applies if voting is split 50/50.

What should you check as a minority shareholder or investor?

Your priority is protection against being outvoted or left behind. Check the following:

• whether you have a tag-along right on a sale by the majority;
• whether you have a veto on share issues, a sale of the business and changes to the articles;
• whether you receive regular financial information, such as quarterly figures;
• whether you are protected against dilution in a capital increase;
• whether you have a contractual exit route with a fair valuation method.

Hva kan vi gjøre for deg med en aksjonæravtale?

Våre bedriftsadvokater draft, review and negotiate shareholders’ agreements for founders, investors and family businesses.

• We draft a shareholders’ agreement tailored to your company and your shareholders.
• We review an existing agreement and the articles of association for conflicts and gaps.
• We negotiate drag-along, tag-along, veto and exit clauses on your behalf with investors or co-founders.
• We coordinate the amendment of the articles with the civil-law notary.
• We assist you in a shareholder dispute, in arbitration or before the Enterprise Chamber.

Sammendrag

• A shareholders’ agreement is a private contract that complements the public articles of association; towards the company, the articles prevail.
• Key clauses cover funding, decision-making, share transfers, drag-along and tag-along, deadlock and dispute resolution.
• Without contractual arrangements, the offer obligation of Article 2:195 BW and the statutory dispute resolution scheme of Articles 2:336 to 2:343c BW apply.
• Since 1 January 2025, expulsion and exit cases are heard by the Enterprise Chamber of the Amsterdam Lagmannsretten.
• Review the agreement whenever a shareholder joins or leaves or the company raises capital.

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