NETHERLANDS Law and Practice Contributed by: Bastiaan Cornelisse, Bastiaan Kemp, Michel van Agt and Philippe Hezer, Loyens & Loeff
Dutch law does not limit or regulate the agenda items that can be tabled during annual or extraordinary gen- eral meetings, so this distinction holds little legal rele- vance in practice. Common items tabled at the annual general meeting include the adoption of the compa- ny’s annual accounts, a discharge from liability of the directors and a dividend distribution. Extraordinary meetings are commonly convened for certain affairs that may arise between annual meetings and must be dealt with at a general meeting, such as certain transactions that are subject to shareholder approval. 2.2 Notice of Shareholders’ Meetings There is no difference between the annual general meeting and the extraordinary general meeting in terms of notice periods. The following mandatory statutory minimum notice periods apply: • eight days for a BV; • 15 days for an NV; and • 42 days for listed companies. If such notice period is not duly observed, in the case of a BV, resolutions can only be validly adopted if all persons entitled to attend meetings gave their con- sent to the adoption of the resolution and the direc- tors and supervisory board members were given an opportunity to give their advice prior to the adoption of the resolution. In the case of an NV, this would require a unanimous vote at a meeting where the entire share capital is present or represented. In practice, this means that the general meeting of listed companies can only adopt valid resolutions if duly convened by taking into account the mandatory minimum notice period. 2.3 Procedure and Criteria for Calling a General Meeting The power to convene a general meeting is at the dis- cretion of the management board and the supervisory board, unless the articles of association provide oth- erwise. Shareholders may be granted the right to con- vene a general meeting in the articles of association. In certain cases, shareholders may be able to petition the court for leave to summon a general meeting.
• One or more shareholders (jointly) holding at least 10% of the shares may submit a written request to the company to convene an extraordinary general meeting. If such request is not (timely) granted, they may petition the competent court for leave to convene a general meeting, provided that they are able to demonstrate a “reasonable interest” in doing so. • If the annual general meeting is not (timely) called by the competent body, each shareholder may petition the competent court for leave to convene a general meeting, provided that they are able to demonstrate a “reasonable interest” in doing so. 2.4 Information and Documents Relating to the Meeting The notice convening a general meeting is sent to all shareholders (except those without meeting rights), among others. Further formalities depend on the type of company and the articles of association. • In BVs, convocation notices are sent to the addresses of the shareholders and other persons entitled to attend the meeting. Typically, this can also be done by email. • For NVs, Dutch law provides as a starting point that general meetings are convened by means of an announcement in a national newspaper. Howev- er, in practice it is common for articles of associa- tion to provide that the holders of registered shares are given notice of meetings by means of letters or email. • In the case of listed companies, the notice is given via the company’s website. The company’s directors are also invited to attend the shareholders’ meeting, but the formal notice require- ments do not apply to them. At the shareholders’ meeting, directors may render their advice as to the items tabled, answer questions posed and participate in deliberations. The convocation notice commonly includes explana- tory notes and may include supporting documents (which in certain cases is required by law). In certain cases, additional information may be provided during the convocation period. Such materials are typically sent to shareholders but may also be kept at the com-
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