Checklist for passing resolution in the General Meeting

 In Business law

Introduction

The general meeting of shareholders of a Dutch private limited (B.V.) can pass resolutions (i) in a meeting and (ii) outside a meeting.The following checklist can be used for the preparation of this decision-making process. This list is not meant to be exhaustive. A lawyer should be consulted to make sure all the rules are applied; if the decision-making procedure is incorrect, the resolution might be invalid. If the private limited’s articles of association were drafted before 1 October 2012 the transitional arrangements apply of the Private Company Law (Simplification and Flexibilization) Act (Wet vereenvoudiging en flexibilisering B.V.-recht).

Checklist

  • Who are entitled to attend the meeting: (i) shareholders, (ii) holders of certificates that have been granted the right to attend meetings under the articles of association, (iii) shareholders who do not have the right to vote because their shares are encumbered by a right of usufruct or pledge and (iv) usufructuaries and pledgees who have the right to vote. Usufructuaries and pledgees who do not have the right to vote do have the right to attend meetings if the articles of association should stipulate this and this provision was not changed when the right of usufruct or pledge was created. The shareholders’ register must list these different rights to attend meetings. The directors and supervisors have an advisory function at meetings.
  • Who convokes: the directors and the supervisory board; the articles of association may grant this right to others, for example to one or more shareholders who represent at least 1% of the issued capital.
  • How is the general meeting convoked: a general meeting is convoked by sending notices convening a meeting to the addresses of the shareholders and the other parties entitled to attend the meeting (as listed in the shareholders’ register). These notices may be sent by email, unless the articles of association should stipulate otherwise.
  • Notice convening a meeting: the notice must include the issues to be discussed. If a specific issue is not included in this notice, the meeting cannot pass a valid resolution unless all of those entitled to attend the meeting agree on this and the directors and supervisors have given their advice prior to the resolution being passed. Any announcements to be made must also be included in the notice to convene; shareholders who hold 1% or more of the issued capital have the right to put an item on the agenda as specified in the Netherlands Civil Code.
  • Period for convening a meeting: convocation must take at the latest eight days before the meeting. If the (old) articles of association should provide for a longer term, this term will apply.
  • Where: the general meeting will be held at the location specified in the articles of association or otherwise in the municipality where the company has its registered offices. The location referred to in the articles of association may be outside the Netherlands. Only if all of those entitled to attend the meeting agree on this and the directors and supervisors have given their advice prior to the meeting, a meeting may be held elsewhere. A meeting may be attended electronically and voting may take place by email, prior to a meeting, provided the articles of association provide for this.
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