Dutch Civil Code

Book 2 Legal Persons

Title 2.7 Merger and division

Section 2.7.1 General provision

Article 2:308 Application of statutory provisions on a merger and division
- 1. The statutory provisions of the present Title (Title 2.7) apply to Associations ('verenigingen') , Cooperatives ('coöperaties'), Mutual Insurance Societies ('onderlinge waarborgmaatschappijen'), Foundations ('stichtingen'), Open Corporations ('naamloze vennootschappen') and Closed Corporations ('besloten vennootschappen').
- 2. The before meant statutory provisions do not apply to Associations with limited legal capacity (Informal Associations as meant in Article 2:30) nor to Associations of Owners (as meant in Article 5:124)
- 3. Furthermore, the present Title (Title 2.7) applies to an Open Corporation ('naamloze vennootschap'), Closed Corporation ('besloten vennootschap') and a European Cooperative Society that merges with a limited liability company*) or cooperative company**) formed (incorporated) under the law of another Member State of the European Union or the European Economic Area.

*) The term ‘limited liability company’ refers to the public and private limited liability companies defined in Article 2(1) of Directive 2005/56/EC of 26 October 2005 on cross-border mergers of limited liability companies. It includes companies referred to in Article 1 of Directive 68/151/EEC and companies with share capital and having legal personality, possessing separate assets which alone serve to cover its debts and subject under the national law governing it to conditions concerning guarantees such as are provided for by Directive 68/151/EEC for the protection of the interests of members and others. It covers at least all public and private limited liability companies with share capital.
**) Member States may decide not to apply the before mentioned Directive to cross-border mergers involving a cooperative society even in the cases where the latter would fall within the definition of "limited liability company" as laid down in Article 2(1). The Netherlands has decided explicitly to apply the Direction also to such so cooperative societies, which are called in this Title ‘cooperative companies’, so that reference in a statutory provision to a company may include, where appropriate, such cooperative society too.

Section 2.7.2 General provisions regarding mergers

Article 2:309 Definition of ‘merger’; passage of property under universal title
A merger is a juridical act of two or more legal persons through which one of them acquires, under universal title, the property (assets and liabilities) of the other, or through which a new legal person, who has been formed (incorporated) by them jointly under that juridical act, acquires their property (assets and liabilities) under universal title.

Article 2:310 Type of legal persons capable of merging with each other
- 1. Legal persons may merge with legal persons of the same type.
- 2. Where the acquiring legal person has been newly formed (incorporated), it must be of the same type as that of the merging legal persons.
- 3. For the purpose of the present Article, Open Corporations ('naamloze vennootschappen') and Closed Corporations ('besloten vennootschappen') are regarded as legal persons of the same type.
- 4. An acquiring Association ('vereniging'), Cooperative ('coöperatie'), Mutual Insurance Society ('onderlinge waarborgmaatschappij') or Foundation ('stichting') may as well merge with an Open Corporation ('naamloze vennootschap') or Closed Corporation ('besloten vennootschap') of which it holds all shares. An acquiring Foundation ('stichting'), Open Corporation ('naamloze vennootschap') or Closed Corporation ('besloten vennootschap') may merge as well with an Association ('vereniging'), Cooperative ('coöperatie') or Mutual Insurance Society ('onderlinge waarborgmaatschappij') of which it is the sole member.
- 5. A dissolved legal person may not merge if a distribution has been made already out of its property on account of a winding-up (liquidation).
- 6. A legal person may not merge during its bankruptcy or during the time that a moratorium on payment is applicable on its behalf.

Article 2:311 Merging legal persons that cease to exist
- 1. Except for the acquiring legal person, the merging legal persons will cease to exist as soon as the merger takes effect.
- 2. The members or shareholders of the disappearing legal persons shall become, as a result of the merger, member or shareholder of the acquiring legal person, except in the situations referred to in Articles 2:310, paragraph 4, 2:333, 2:333a or 3:333h, paragraph 3, or when pursuant to the exchange ratio of shares not even an entitlement in one single share exists.

Article 2:312 Merger proposal and its content
- 1. The Boards of Directors of the legal persons to be merged shall prepare a merger proposal.
- 2. This proposal shall specify at least:
a. the type, name and seat (registered office) of the legal persons to be merged;
b. the articles of incorporation of the acquiring legal person as read before and after the merger or, if the acquiring legal person is to be newly formed (incorporated), the draft of the notarial deed of incorporation;
c. any rights and compensations that will be allocated (granted) pursuant to Article 2:320, for account of the acquiring legal person, to those persons who, other than in their capacity as member or shareholder, may exercise particular rights against the disappearing legal persons, like rights to a distribution of profits or rights to take (acquire) shares, and from what moment on;
d. the benefits that, in connection with the merger, will be allocated (granted) to a Director or Supervisory Director of a legal person to be merged or to someone else involved at the merger;
e. the intentions with regard to the composition of the Board of Directors after the merger and, if a Supervisory Board will be present, with regard to the composition thereof;
f. for each of the disappearing legal persons: the moment as of which financial data will be accounted for in the annual accounts or other financial statements of the acquiring legal person;
g. the intended measures relating to the transfer of membership or share ownership of the disappearing legal persons;
h. the intentions regarding the continuation or termination of operations;
i. which persons or bodies, where appropriate, shall have to approve the resolution (decision) to enter into a merger.
- 3. The merger proposal is signed by the Directors of each of the merging legal persons; where the signature of one or more of them is missing, this will be reported, with mention of the reasons therefor.
- 4. Unless all merging legal persons are Associations ('verenigingen') or Foundations ('stichtingen'), the merger proposal must have been approved by the Supervisory Boards and signed by all Supervisory Directors; where the signature of one or more of them is missing, this will be reported, with mention of the reasons therefor. Furthermore, the merger proposal shall mention the impact of the proposed merger on the size (proportion) of goodwill and the distributable reserves of the acquiring legal person.

Article 2:313 Explanation on the merger proposal; interim annual account or capital account
- 1. The Board of Directors of each of the legal persons to be merged shall, in a written explanation, mention the reasons for the merger, including a clarification of effects to be expected on operations, and a further commentary from a legal, economical and social point of view.
- 2. If the last accounting year (financial year) of the legal person, with regard to which an annual account or another financial statement has been adopted, has expired more than six months before the merging proposal is deposited for public inspection, the Board of Directors shall prepare a separate annual account or interim capital account. Such account shall relate to the state of the legal person’s property (assets and liabilities) on a day not earlier than the first day of the third month before the month in which the merger proposal was deposited or disclosed for inspection. It is prepared in accordance with the lay-out (arrangement) and valuation methods that have been used in the last adopted annual account or other financial statement, unless the grounds for a deviation are well substantiated and relate to the fact that the current (up to date) value differs significantly form the book value. The reserves that have to be maintained pursuant to law or the articles of incorporation have to be included in that account.
- 3. Where it concerns a disappearing legal person, no explanation is required in the situations referred to in Articles 2:310, paragraph 4, and 2:333, unless others than the acquiring legal person may exercise a particular right against the disappearing legal person, like a right to a distribution of profits or a right to take (acquire) shares.
- 4. Paragraph 1 does not apply if the members or shareholders of the legal persons to be merged have agreed so.
- 5. Paragraph 2 does not apply if the legal person meets the requirements concerning the half-yearly financial accounting referred to in Article 5:25d of the Financial Supervision Act.

Article 2:313a [repealed on 06-08-1987]

Article 2:314 Documents to be deposited at the commercial register
- 1. Each of the legal persons to be merged shall deposit for inspection at the office of the commercial register or makes public at the commercial register by electronic means of communication;
a. the merger proposal;,
b. the last three adopted annual accounts or other financial statements of the legal persons to be merged, including the auditor’s (accountant’s) certificate in respect thereof, insofar as these documents are or have to be deposited (made available) for public inspection;
c. the annual reports of the legal persons to be merged over the last three accounting years (financial years), insofar as these documents are or have to be deposited (made available) for public inspection;
d. interim capital accounts or not yet adopted annual accounts, insofar as such documents are required pursuant to Article 2:313, paragraph 2, and insofar as the annual accounts of the legal person have to be deposited (made available) for public inspection.
- 2. At the same time, the Board of Directors shall deposit for public inspection the before meant documents, including the annual accounts and annual reports that do not have to be made available for public inspection, together with the explanation of the Boards of Directors, at the office of the legal person or, in the absence of such an office, at the residence of one of the Directors, or makes these documents available by electronic means of communication. Up until the merger, and for a period of at least six months thereafter, these documents shall remain available at the address of the legal person or, respectively, at the address of the residence of the involved Director for inspection or remain available by electronic means of communication for inspection, all on behalf of the members or shareholders and of those who may exercise a particular right against the legal person, like a right to a distribution of profits or the right to take (acquire) shares. During that period the before mentioned persons are entitled to receive, free of charge, a copy of these documents. A copy may be provided by electronic means of communication if a member or shareholder has agreed to that. The legal person is not obliged to provide copies in the event that the members or shareholders have the possibility to save (record) an electronic copy of the document.
- 3. The legal persons to be merged shall announce in a national daily newspaper that the before meant documents are deposited for inspection or can be checked, with mention of the public registers where they can be found or where they are electronically available and of the address where they are deposited pursuant to paragraph 2 or where they are electronically available for inspection.
- 4. If the Works Council or Employee Participation Council of a legal person to be merged, or an Association of Workers (union) of which employees of the legal person or its subsidiaries are a member, has filed a written advise or written comments, then this advise or these comments shall be deposited, simultaneously with the merger proposal or immediately after they were received, at the address meant in paragraph 2. The second up and including the fifth sentence of paragraph 2 shall apply accordingly.
- 5. If the Boards of Directors of the legal persons to be merged amend (change) the merger proposal, then paragraph 1 up to and including 4 shall apply accordingly.
- 6. Paragraph 2 and 4 do not apply to Foundations ('stichtingen').

Article 2:315 Change of circumstances
- 1. The Board of Directors of each legal person to be merged is obliged to inform the General Meeting and the other legal persons to be merged about any important change in assets and liabilities that appeared after the merger proposal and that has affected the statements in the merger proposal or in the explanation.
- 2. Within a Foundation ('stichting') this obligation has to be complied with towards those who, according to the articles of incorporation, have to approve the merger.
- 3. Paragraph 1 does not apply if the members or shareholders of the legal persons to be merged have agreed so.

Article 2:316 Guarantees for creditors; objections raised by creditors
- 1. Where a creditor of one of the legal persons to be merged demands that security or another guarantee for the performance of his debt-claim is provided, at least one of the legal persons to be merged has to provide such security or guarantee, on the penalty that an objection as meant in the following paragraph will be declared valid. This, however, does not apply if the creditor has adequate guarantees already or if the financial position of the acquiring legal person after the merger does not offer less guarantees for the performance of the debt-claim than before.
- 2. Up until one month after the moment on which all of the legal persons to be merged have made the announcement that the merger proposal has been deposited or disclosed for public inspection, each creditor may, by means of a petition lodged with the District Court, raise an objection against the merger proposal, with mention of the guarantee that is sought. The District Court shall deny the request if the applicant has not made plausible that the financial state of the acquiring legal person after merger provides less guarantees that the debt-claim will be satisfied, and that not sufficient guarantees have been obtained from the legal person.
- 3. Before the court shall give its decision, it may grant the involved legal persons the opportunity to provide, within a period set by the court, a guarantee specified by the court.
- 4. If an objection is raised in time, the notarial deed of merger may be executed only when the objection is withdrawn or the termination of the objection has become enforceable.
- 5. If the notarial deed of merger was executed already, the court may, in regard of an instituted legal action or legal remedy, order that a guarantee specified by the court has to be provided, which order may be rendered under a periodic penalty payment set by the court in the event of non-compliance.

Articles 2:317 Body within the legal person that adopts the resolution for a merger
- 1. The resolution for a merger is adopted (passed) by the General Meeting; within a Foundation ('stichting') such a resolution is adopted (passed) by those who are empowered to amend the articles of incorporation or, if no one is allowed to make such an amendment, by the Board of Directors. The resolution may not differ from the merger proposal.
- 2. A resolution for a merger may be adopted (passed) only on the expiry of one month since the day on which all merging legal persons have announced that they have deposited the merger proposal for public inspection.
- 3. A resolution for a merger is adopted (passed) in the same manner as a resolution to amend the articles of incorporation. Where, according to the articles of incorporation, such an amendment requires the approval of another body or person, this requirement shall apply as well to a resolution for a merger. When the articles of incorporation require different voting majorities for the amendment of separate provisions of the articles of incorporation, then a resolution for a merger requires the largest of these voting majorities. When the articles of incorporation rule out (exclude) the possibility to amend the provisions of the articles of incorporation, then the votes of all members or shareholders entitled to vote are required. The preceding two sentences remain inapplicable when the involved provisions of the articles of incorporation continue to apply unabated after the merger.
- 4. Paragraph 3 does not apply where the articles of incorporation provide for a different arrangement for resolutions for a merger.
- 5. A resolution for a merger of a Foundation ('stichting') requires the approval of the District Court, unless the articles of incorporation make it possible to amend all of its provisions. The District Court denies a request for such approval if there are well-founded grounds to believe that the merger is contrary to the interests of the Foundation ('stichting').

Article 2:317a [repealed on 06-08-1987]

Article 2:318 Notarial deed of merger; date that the merger takes effect
- 1. The merger is effectuated by notarial deed and shall take effect from the day following the one on which that deed is executed. The notarial deed of merger may only be executed within six months after the announcement that the merger proposal has been deposited or disclosed for public inspection or, if this is not allowed as a result of a raised objection, within one month after the withdrawal of that objection or after the termination of that objection has become enforceable.
- 2. At the end of the notarial deed of merger the notary shall declare that it has appeared to him that all formal requirements for the necessary resolutions, imposed pursuant to the present and the following Sections and the articles of incorporation for the realization of a merger, have been met, and that furthermore all other requirements, imposed pursuant to the present and following Sections and the articles of incorporation, have been observed.
- 3. The acquiring legal person shall cause the registration of the merger in the commercial register within eight days after the execution of the notarial deed. A copy of the deed of merger with a notarial declaration at the foot thereof will be deposited at the office of that register.
- 4. Within one month, the acquiring legal person shall report the merger to the keepers of other public registers where a passage (transfer) of rights or the merger can be registered. Where registered property has passed to the acquiring legal person as a result of the merger, the acquiring legal person is obliged to present, within this period, the documents required for the registration of a merger to the keeper of the public registers meant in Section 1 of Title 1 of Book 3.

Article 2:319 Pledge or usufruct on a disappearing membership right or share
- 1. When a membership right or a share in a disappearing legal person was encumbered with a pledge or usufruct, then what has come in the place of that membership right or share will become encumbered with that pledge or usufruct.
- 2. When a pledge or usufruct was established on a membership right or a share for which nothing else comes in the place, then the acquiring legal person must provide an equivalent substitution.

Article 2:320 Particular rights that may be exercised against a disappearing legal person
- 1. A person who, other than in his capacity as member or shareholder, may exercise a particular right against a disappearing legal person, like a right to a distribution of profits or a right to take (acquire) shares, must obtain an equivalent right in the acquiring legal person, or a compensation.
- 2. In the absence of an agreement on such compensation, this compensation shall be assessed by one or more impartial experts, to be appointed by the provisional relief judge of District Court in whose judicial territory the domicile of the acquiring legal person is located, upon the request of either party.
- 3. Article 2:319 shall apply accordingly to a pledge or usufruct that was established on such particular rights.

Article 2:321 Last accounting year and last annual account; statutory reserves
- 1. At the moment as of which the acquiring legal person shall account for the financial data of a disappearing legal person in its own annual accounts or other financial statements, the last accounting year (financial year) of the disappearing legal person shall be ended
- 2. The obligations regarding the annual accounts or other financial statements of the disappearing legal person shall, after the merger, be incumbent on the acquiring legal person.
- 3. Valuation differences between the assessment of the assets and liabilities in the last annual accounts or other financial statements of the disappearing legal person and in the first annual accounts or other financial statements in which the acquiring legal person accounts for those assets and liabilities, must be explained.
- 4. The acquiring legal person has to create statutory reserves in the same way as in which the disappearing legal person had to maintain statutory reserves, unless the statutory basis for maintaining such reserves has elapsed.

Article 2:322 Amendment or dissolution of existing agreements by the court
- 1. Where the merger leads to the result that an agreement of a merging legal person, to standards of reasonableness and fairness, should not be continued unchanged, the court shall amend or dissolve that agreement upon the request of one of the involved parties. Such amendment or dissolution may be ordered with retroactive effect.
- 2. The right to bring a legal claim as meant in the previous paragraph ceases to exist on the expiry of six months since the notarial deed of merger was deposited for public inspection at the office of the public registers of the domiciles of the merging legal persons.
- 3. If the counterparty suffers damage as a result of an amendment or dissolution of the agreement, then the legal person is obliged to pay a compensation to him.

Article 2:323 Annulment of the merger
- 1. The court may only annul a merger:
a. if the notarial deed of merger, signed by the notary, is not an authentic document;
b. on the ground of a failure to comply with Articles 2:310, paragraph 5 or 6, 2:316, paragraph 4, or 2:318, paragraph 2;
c. if a resolution of the General Meeting or, in the event of a Foundation ('stichting'), of the Board of Directors, required for the merger, is null and void, not in force or subject to a ground of voidability;
d. on the ground of a failure to comply with Article 2:317, paragraph 5.
- 2. The annulment is effectuated by a decision of the court in whose judicial territory the domicile of the acquiring legal person is located, rendered upon a legal claim (right of action) against that legal person brought by a member, shareholder, Director or other interested party. A merger which is not annulled by the court, is valid.
- 3. The right to file a legal claim (right of action) for annulment of the merger ceases to exist when the defect (failure) is repaired, or on the expiry of six months since the notarial deed of merger was deposited for inspection at the office of the commercial register.
- 4. A merger shall not be annulled:
a. if the legal person, within a period set by the court, has repaired the defect (failure);
b. if it would be difficult to undo the effects of the merger that already have set in.
- 5. Where the plaintiff, who has filed a legal claim (right of action) for annulment of the merger, has suffered damage as a result of a defect (failure) which could have led to an annulment, and the court does not annulled the merger, then the court may order the legal person to pay compensatory damages. The legal person may take recourse for this against those who are to blame for the defect (failure) and, although not beyond the advantage conferred, against those who have gained a benefit from the defect (failure) .
- 6. The clerk of the court where the legal claim (right of action) was last pending, shall ensure that the annulment gets registered at the commercial register.
- 7. The legal persons are jointly and severally liable for obligations which have come to existence for account of the legal person in which they have merged, in the period after the merger en prior to the moment on which the annulment was registered in the commercial register.
- 8. The final and binding decision of the court to annul the merger is binding for everyone. It is not possible for third parties to raise an objection; a revocation is neither possible.

Article 2:323a [repealed on 06-08-1987]

Article 2:323b [repealed on 06-08-1987]

Section 2.7.3 Special statutory provisions for mergers of Open and Closed Corporations

Article 2:324 Application of the present Section
The present Section (Section 7.2.3) applies if an Open or Closed Corporation ('naamloze of besloten vennootschap') enters into a merger.

Article 2:325 Shares (exchange ratio, surcharges, withdrawal)
- 1. If shares or depositary receipts for shares in the capital of a Corporation to be merged are admitted to a regulated market or multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not a Member State, then the exchange ratio may be made dependant on the price of those shares, respectively, those depository receipts on that market or trading facility on one or more moments to be determined in the merger proposal, chosen before the day on which the merger takes effect.
- 2. Where there is an entitlement to money or debt-claims (debt receivables) on account of the exchange ratio of shares, the total joint amount thereof may not exceed one-tenth of the nominal amount of the allotted shares.
- 3. In the notarial deed of merger the acquiring Corporation may withdraw shares in its own capital, held either by itself or by another merging Corporation, to at the most the nominal amount of the shares that it allots to its new shareholders. Articles 2:99, 2:100, 2:208 and 2:216 do not apply in that event.
- 4. Shares in the capital of the disappearing Corporation, held by or on behalf (for account) of the merging Corporations, cease to exist.

Article 2:326 Additional information in the merger proposal
The merger proposal states in addition to the items listed in Article 2:312:
a. the exchange ratio of shares and, where applicable, the amount of the payments made on account of the exchange ratio;
b. as of which moment and to what extent the shareholders of the disappearing Corporations will share (participate) in the profits of the acquiring Corporation;
c. how many shares possibly might be withdrawn under application of Article 2:325, paragraph 3.

Article 2:327 Additional information in the written explanation
The Board of Directors must report in its written explanation on the merger proposal:
a. according to which method or methods the exchange ratio of shares is established;
b. whether this method or these methods were appropriate in this particular event;
c. to which valuation each method resulted;
d. if more than one method is used: whether the comparative importance of the used methods, as applied in the valuation, is regarded as acceptable to generally applicable standards, and;
e. which particular difficulties, if any, have been encountered when making the valuation and when establishing the exchange ratio.

Article 2:328 Auditors certificate and report on additional items
- 1. An auditor (accountant) as meant in Article 2:393, appointed by the Board of Directors, has to examine the merger proposal and certify whether the proposed exchange ratio of shares, in view of, among others, the documents attached to it, is reasonable in his opinion. He must also certify that the sum of the equities (total amount of assets minus liabilities) of the disappearing Corporations, each determined to the day to which the involved Corporation’s annual account or interim capital account relates, at least equalled, under the application of generally accepted standards for valuation methods, the nominal amount that is paid-up on the total shares which their shareholders acquire due to the merger, increased with payments to which they are entitled on account of the exchange ratio.
- 2. The auditor (accountant) also has to prepare a report stating his opinion about the written explanation of the Board of Directors meant in Article 2:327.
- 3. If two or more of the merging Corporations are Open Corporations ('naamloze vennootschappen'), then only the same person may be appointed as auditor (accountant) if the President of the Enterprise Chamber ('Ondernemingskamer') of the Amsterdam Court of Appeal has approved such appointment upon a uniform request.
- 4. The auditors (accountants) are equally competent to hold their examination at all merging Corporations.
- 5. Article 2:314 applies accordingly to the certificate (statement) of the auditor (accountant); Article 2:314, paragraph 2 and 3, applies accordingly to the report (survey) of the auditor (accountant) .
- 6. The first full sentence of paragraph 1 and paragraph 2 does not apply when the shareholders of the merging Corporations have agreed with that.

Article 2:329 Right of inspection of holders of depository receipts for shares
Article 2:314, paragraph 2, applies as well to holders of depository receipts issued for shares in collaboration with the Corporation.

Article 2:330 Merger resolution of the General Meeting
- 1. The General Meeting’s resolution for a merger requires in any event a majority of at least two-thirds if less than one-half of the issued share capital is represented at the meeting. In the merger of a Corporation concerns an investment company ad meant in the Financial Supervison Act, of which the objective is the collective investment of capital provided by the public, which operates on the principle of risk-spreading and the units of which are, at the holders’ request, repurchased or redeemed, directly or indirectly, out of the assets of that company. Action taken by such a company to ensure that the stock exchange value of its units does not vary significantly from its net asset value shall be regarded as equivalent to such repurchase or redemption.
- 2. When there are different types (classes) of shares, then, in addition to the merger resolution of the General Meeting, a prior or simultaneous approving resolution (decision) is required of each group of holders of shares of the same type (class) whose rights are affected by the merger. Article 2:231, paragraph 4, does not apply in regard of a resolution for a merger. Article 2:226, paragraph 2, does not apply with regard to a mergers as referred to in Article 2:333h. The required approval can be given only when one month has passed since the day on which all merging Corporations have announced that a merger proposal is deposited or disclosed for inspection.
- 3. The minutes of General Meetings where the resolution for a merger has passed or where it has been approved pursuant to paragraph 2 are drawn up by notarial deed.

Article 2:331 Merger resolution of the Board of Directors
- 1. Unless the articles of incorporation provide otherwise, the acquiring Corporation may resolve (decide) to merge by resolution of the Board of Directors.
- 2. Such resolution (decision) of the Board of Directors, however, can be adopted (taken) only if the Corporation has mentioned that it intends to pass such resolution in the announcement indicating that the merger proposal has been deposited for inspection.
- 3. Such resolution (decision) cannot be adopted (taken) if one or more shareholders representing together at least one-twentieth of the issued share capital, or such lesser part as specified in the articles of incorporation, have requested the Board of Directors within one month after the before meant announcement to convene a General Meeting in order to decide on the merger. Articles 2:317 and 2:330 are applicable in such event.
- 4. If an acquiring legal person merges with a Corporation of which it holds all shares, then the disappearing legal person may resolve (decide) by a resolution of the Board of Directors to enter into the merger, unless the articles of incorporation provide otherwise.

Article 2:332 [repealed on 01-07-2011]

Article 2:333 Simplified merger in case of 100%-participating interest
- 1. If the acquiring Corporation merges with a Corporation of which it holds all shares or with an Association (verenging), Cooperative ('coöperatie') or Mutual Insurance Society ('onderlinge waarborgmaatschappij') of which it is the only member, then Articles 2:326 up to and including 2:328 do not apply.
- 2. If someone, or another person on his behalf (for his account), holds all shares in the capital of the Corporations to be merged, and the acquiring Corporation does not allot any shares under the notarial deed of merger, then Articles 2:326 up to and including 2:328 do not apply.
- 3. If an acquiring Association (verenging), Cooperative ('coöperatie'), Mutual Insurance Society ('onderlinge waarborgmaatschappij') or Foundation ('stichting') merges with an Open or Closed Corporation (naamloze of 'besloten vennootschap') of which it holds all shares, then only Article 2:329 of the present Section will be applicable.

Article 2:333a Triangle merger; group companies
- 1. The notarial deed of merger may provide that the shareholders of the disappearing Corporations become shareholders of a group company of the acquiring Corporation. In such event these shareholders will not become shareholder of the acquiring Corporation.
- 2. A merger meant in the previous paragraph is possible only if the group company, solely or jointly with another group company, provides for the entire issued share capital of the acquiring Corporation. Articles 2:317, paragraphs 1 up to and including 4, 2:330 and 2:331 apply accordingly to the resolution (decision) of the group company.
- 3. The group company which allots the shares is regarded, next to the acquiring Corporation, as a merging legal person. The obligations to which the acquiring Corporation is subjected under Articles 2:312 up to and including 2:329 are incumbent on such group company, with the exception of the obligations under Articles 2:316, 2:317, 2:318, paragraph 4, 2:321, paragraph 2 and 4, 2:323, paragraph 7; for the purpose of Article 2:328, paragraph 3, such group company remains excluded. Articles 2:312, paragraph 2, under (b), 2:320, 2:325, paragraph 3, and 2:326, paragraph 1, under (b), shall in such event not apply to the acquiring Corporation.

Section 2.7.3A Special statutory provisions for cross-border mergers

Article 2:333b Application of Section 2.7.3A to cross-border mergers
- 1. The present Section (Section 2.7.3A) applies if an Open Corporation ('naamloze vennootschap'), Closed Corporation ('besloten vennootschap') or a European Cooperative Society merges with a limited liability company*) or cooperative company**) formed under the law of another Member State of the European Union or the European Economic Area.
- 2. The present Section (Section 2.7.3A) does not apply to an Open Corporation ('naamloze vennootschap') which is an investment company within the meaning of the Financial Supervision Act of which the units (rights of participation), upon the request of their holders, are repurchased or redeemed, directly or indirectly, out of the assets of the investment company.

*) The term ‘limited liability company’ refers to the public and private limited liability companies defined in Article 2(1) of Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies. It includes companies referred to in Article 1 of Directive 68/151/EEC and companies with share capital and having legal personality, possessing separate assets which alone serve to cover its debts and subject under the national law governing it to conditions concerning guarantees such as are provided for by Directive 68/151/EEC for the protection of the interests of members and others;It covers at least all public and private limited liability companies with share capital.
**) Member States may decide not to apply the before mentioned Directive to cross-border mergers involving a cooperative society even in the cases where the latter would fall within the definition of "limited liability company" as laid down in Article 2(1). The Netherlands has decided to apply the Direction to such so called ‘cooperative companies’.

Article 2:333c Types of companies from different Member States that can enter into a cross-border merger
- 1. An Open of Closed Corporation ('naamloze of besloten vennootschap') may merge with a limited liability company which is formed (incorporated) under the law of another Member State of the European Union or of the European Economic Area. Furthermore, an Open or Closed Corporation ('naamloze of besloten vennootschap') may be the acquiring company in a merger between limited liability companies that are formed (incorporated) under the law of another Member State of the European Union or European Economic Area.
- 2. A European Cooperative Society with its seat (registered office) in the Netherlands may merge with a cooperative company which is formed (incorporated) under the laws of one or more other Member States of the European Union or European Economic Area. A European Cooperative Society with its seat (registered office) in the Netherlands may, furthermore, be an acquiring company in a merger between cooperative companies formed (incorporated) under the laws of one or more other Member States of the European Union or European Economic Area. Articles 2:324 up to and including 2:333 apply as well to such merger, unless otherwise provided in the present Section (Section 2.7.3A).
- 3. An Open or Closed Corporation ('naamloze of besloten vennootschap') may merge, under the application of Article 2:333a, with a limited liability company in accordance and pursuant to the law of another Member State of the European Union or European Economic Area, provided that the acquiring company and the group company meant in Article 2:333a, paragraph 1, are limited liability companies (Corporations) with their seat (registered office) in the Netherlands.
- 4. An investment company meant in Article 2:333b, paragraph 2, may merge with a public limited liability company formed (incorporated) under the law of another Member State of the European Union or European Economic Area of which the objective is the collective investment of capital provided by the public, which operates on the principle of risk-spreading and the units of which are, at the holders’ request, repurchased or redeemed, directly or indirectly, out of the assets of that company. Action taken by such a company to ensure that the stock exchange value of its units does not vary significantly from its net asset value shall be regarded as equivalent to such repurchase or redemption.

Article 2:333d Additional information to be listed in the merger proposal
The joint merger proposal lists, in addition to the items mentioned in Article 2:312 and 2:326, the following information:
a. the type (form), name and seat (registered office) of the acquiring company;
b. the likely impact of the merger on employment;
c. if relevant, information on the procedure for adopting rules relating to employee participation as referred to in Article 2:333k within the acquiring company;
d. information about the valuation of assets and liabilities which shall pass to the acquiring Corporation;
e. the date of the last adopted or pursuant to Article 2:313 prepared annual account that is used to assess the conditions for the merger;
f. a proposal for the amount of compensatory damages for a share under the application of Article 2:333h.

Article 2:333e Publication of information in the Dutch Government Gazette
- 1. The merging company shall publish for all merging companies in the Dutch Government Gazette:
a. the type (form), name and seat (registered office);
b. the indication and registration number at the register where the data relating to the merging companies are recorded;
c. the arrangements under which the rights of minority shareholders and creditors may be exercised, and the address where they may obtain, at no cost, full information about those rights.
- 2. When there are more merging companies (Corporations) with a seat (registered office) in the Netherlands, they may comply with the before meant obligation through a joint publication.
- 3. Article 2:314, paragraph 3, does not apply.

Article 2:333f Availability of the written explanation for the Works Council or employees
Up until the moment of the merger the written explanation referred to in Article 2:314, paragraph 2, shall be available for inspection for the Works Council or, if a Works Council is absent in the enterprise maintained by the company, for employees of the company.

Article 2:333g Additional information in the auditor’s certificate
The auditor’s certificate referred to in Article 2:328, paragraph 1, second sentence, mentions the nominal paid-up amount of the total joint shares that the shareholders have acquired pursuant to the merger, increased with payments to which they are entitled under the exchange ratio, and increased also with the total amount of compensations which the shareholders may claim on the basis of Article 2:333h.

Article 2:333h Request for compensation
- 1. If the acquiring company is a company formed (incorporated) under the law of another Member State of the European Union or European Economic Area, the shareholder of a disappearing Dutch company who has voted against the merger resolution may lodge a request [against that Dutch company in the Netherlands] for the payment of a compensation within one month after the date of that resolution.
- 2. In the absence of an agreement on the amount of that compensation, this compensation shall be assessed, upon the request of either party, by one or more independent experts to be appointed by the president of the Enterprise Chamber ('Ondernemingskamer') of the Amsterdam Court of Appeal.
- 3. The shares to which the request relates, cease to exist at the moment that the merger takes effect.
- 4. For the purpose of the present Article holders of depository receipts for shares as meant in Article 2:118a are equated with shareholders.

Article 2:333i Information to be assured in a certificate of a notary
- 1. A merger in which the acquiring company is a company formed (incorporated) under the law of another Member State of the European Union or European Economic Area shall take effect, in derogation from Article 2:318, paragraph 1, in the way and on the date as specified by the law of the State where the acquiring company has its seat (registered office).
- 2. Article 2:318, paragraph 2, does not apply.
- 3. The notary shall certify that it has appeared to him that the procedural requirements (formalities) are complied with in respect of all resolutions (decisions) for the participation of the Dutch company in a cross-border merger required pursuant to Sections 7.2.2, 7.2.3 and 7.2.3A and the articles of incorporation, and that, for the rest, the relevant provisions of the present Section (Section 7.2.3A) for such merger have been observed.
- 4. Where the acquiring company is a company formed (incorporated) under the law of another Member State of the European Union or European Economic Area, the notary may only issue the certificate referred to in paragraph 3 if no request for compensation as meant in Article 2:333h is lodged [in the Netherlands against the involved Dutch company], or if such compensation has been paid out already, unless the other merging companies have decided that the acquiring company has to pay that compensation. In the latter case the notary mentions in his certificate that the request is lodged.
- 5. Where the acquiring company is a company formed (incorporated) under Dutch law, the notary shall certify at the end of the notarial deed of merger meant in Article 2:318, paragraph 1, that is has appeared to him that the procedural requirements (formalities) referred to in that paragraph have been complied with, and that the disappearing companies have passed a resolution on the same merger proposal, and that the arrangements relating to employee participation are adopted in accordance with Article 2:333k.

Article 2:333j Formalities for the keeper of the commercial register
The keeper of the commercial register where the acquiring legal person is registered, shall promptly after the registration of the merger inform the registers defined in Article 2:333e where the disappearing companies are registered .

Article 2:333k Requirements in regard of employee participation
- 1. Arrangements related to employee participation are, in the present Article, understood as arrangements for employee participation as meant in Article 1:1, paragraph 1, of the Act Employees Involvement in a European Legal Person.
- 2. If:
a. at least one of the merging companies in the six months prior to the date on which the merger proposal was deposited or disclosed for public inspection as referred to in Article 2:314, has employed, on average, more than five hundred employees, and the arrangements relating to employee participation apply to that merging company, or;
b. arrangements relating to employee participation apply to one of the merging companies, and the acquiring company does not meet the requirements of Article 2:157, 2:158 up to and including 2:164 or 2:158 up to and including 2:161 and 2:164 or 2:267, 2:268 up to and including 2:274 or 2:268 up to and including 2:271 and 2:274;
then the following Articles will apply accordingly:
- Article 12, paragraph 2 up to and including 4 of the European Regulation, ( EC ) No 2157/2001, of the Council of the European Union of 8 October 2001 on the Statute for a European Company (SE), and;
- Articles 1:4 up to and including 1:12, 1:14, paragraph 1, 2, 3 and 4, under (a), 1:16, 1:17, 1:18, paragraph 1, under (a), (h), (i) and (j), and paragraph 3 and 6, 1:20, 1:21, paragraph 2, under (a), except that in the percentage of 25 mentioned in that provision is replaced by 33 ?, paragraph 4 and 5, 1:26, paragraph 3, and 1:31, paragraph 2, of the Act Employees Involvement in a European Legal Person, and;
- Article 670, paragraph 4 and 1,1 and 670a, paragraph 1, under (a), of Book 7 of the Civil Code.
- 3. The General Meeting of each merging company may decide to discard the opening of negotiations on arrangements relating to employee participation. This decision means that the standard rules for arrangements for employee participation as referred to in Article 1:31 of the Act Employees Involvement in European Legal Persons shall apply to the acquiring company as of the date of registration of the merger.
- 4. The special negotiating body referred to in Article 1:1 of the Act Employees Involvement in European Legal Person may decide to discard the opening of negotiations or to terminate negotiations on arrangements relating to employee participation. This decision ends the procedure to conclude an agreement in accordance with Article 1:11, paragraph 1, of the Act Employees Involvement in a European Legal Person. Such decision of the special negotiating body requires a majority of two-thirds of its members, also representing two-thirds of the employees and coming from at least two Member States.
- 5. If the acquiring company is a company formed (incorporated) under Dutch law, the application of Articles 2:158 up to and including 2:164 or 2:158 up to and including 2:161 and 2:164 or 2:268 up to and including 2:274 or 2:268 up to and including 2:271 and 2:274 or the effect of the employees participation shall be specified in the articles of incorporation.
- 6. The General Meeting may attach to the merger resolution meant in Article 2:317 the condition that it approves the application of Articles 2:158 up to and including 2:164 or 2:158 up to and including 2:161 and 2:164 or 2:268 up to and including 2:274 or 2:268 up to and including 2:271 and 2:274 or the effect of the arrangements relating to employees participation. The General Meeting may, in its resolution through which it grants such approval, provide the authorization to amend the articles of incorporation to the extent necessary for such application or effect.
- 7. If a company within three years after the moment on which the merger takes effect participates in a merger as meant in the present Title (Title 7.2), the present Article shall apply accordingly.
- 8. In applying Article 1:17, paragraph 2, of the Act Employees Involvement in a European Legal Person, the period of six months referred to in Article 2:318, paragraph 1, is extended to three months after the end of the extended negotiation period meant Article 1:17, paragraph 2, of the Act Employees Involvement in a European Legal Person, on the understanding that the maximum period will be one year and three months.

Article 2:333l No annulment of a cross-border merger in case of non-observance of Section 7.2.3A
It is not possible to pronounce (order) the nullification or annulment of a merger on the basis of the present Section. Article 2:323 does not apply.

Section 2.7.4 General provisions regarding divisions

Article 2:334a Definition of 'pure division' and 'hive off'; party to a division
- 1. Division includes a pure division and a hive off.
- 2. A 'pure division' is a juridical act under which the property (assets and liabilities) of a legal person, which ceases to exist at the division, is acquired under universal title in accordance with the description attached to the notarial deed of division by two or more other legal persons.
- 3. A 'hive off' is a juridical act under which the property (assets and liabilities) or a part thereof of a legal person, which does not cease to exist at the division, is acquired under universal title in accordance with the description attached to the notarial deed of division by one or more other legal persons of which at least one, in accordance with what is provided in the present and next Section, allots membership rights or shares in its capital to members or shareholders of the dividing legal person, or of which at least one is formed (incorporated) at the division by the dividing legal person.
- 4. Party to the division are the dividing legal person as well as each acquiring legal person, with the exception of the legal person which is formed (incorporated) at the division.

Article 2:334b Type of legal person capable of being involved in the same division
- 1. The parties to a division must be of the same type of legal person.
- 2. Where an acquiring legal person is formed (incorporated) at the division, it must be of the same type as the dividing legal person.
- 3. For the purpose of the present Article, Open Corporations ('naamloze vennootschappen') and Closed Corporations ('besloten vennootschappen') are regarded as the same type of legal person.
- 4. At the division of an Association ('vereniging'), Cooperative ('coöperatie'), Mutual Insurance Society ('onderlinge waarborgmaatschappij') or Foundation ('stichting'), it is possible to form (incorporate) Open or Closed Corporations ('naamloze of besloten vennootschappen'), provided that the dividing legal person acquires all shares therein at the division.
- 5. A dissolved legal person may not be a party to a division if distributions have been made already on account of the winding-up (liquidation) of its property.
- 6. A legal person may not be a party to a division during its bankruptcy or the application of a moratorium on payment on its behalf.
- 7. A dividing legal person may be bankrupt or subject to the application of a moratorium on payment on its behalf, provided that all acquiring legal persons are Open or Closed Corporations ('naamloze of besloten vennootschappen') formed (incorporated) at the division and the dividing legal person becomes, at the division, the sole shareholder of those Corporations. If the dividing legal person is bankrupt, then the liquidator in bankruptcy ('curator') may decide to a division, with the result that the obligations incumbent pursuant to the present and next Section on the Board of Directors, shall be incumbent on the liquidator ('curator'); if the dividing legal person is subject to the application of a moratorium on payment on its behalf, the resolution (decision) for a division requires the approval of the legal administrator ('bewindvoerder'). The second sentence of Article 2:334d, Article 2:334f, paragraph 2, under (e), insofar as it concerns the value of the portion of the property (assets and liabilities) that the dividing legal person will retain; Article 2:334g, paragraph 2, Article 2:334i, paragraph 1, Article 2:334k, Article 2:334w and Article 334ff, paragraph 3, do not apply in the event of bankruptcy; the second sentence of Article 2:334d and Article 2:334w do not apply in the event of a moratorium on payment.

Article 2:334c Legal effects of a division for the involved parties themselves
- 1. When the entire property (all assets and liabilities) of the dividing legal person passes to one or more other legal persons involved at the division, then the dividing legal person shall cease to exist at the moment that the division enters into force.
- 2. Paragraph 1 does not apply if at least one of the acquiring legal persons is an Open or Closed Corporation ('naamloze of besloten vennootschap') formed (incorporated) at the division, and the dividing legal person acquires all shares therein at the division.

Article 2:334d Value of the passed and retained property
Except where the acquiring legal persons are Open or Closed Corporations ('naamloze of besloten vennootschappen'), the value of the portion of the property (part of all assets and liabilities) of the dividing legal person*) that each acquiring legal person acquires must, at the moment of the division, be at least zero. Except where the dividing legal person is an Open or Closed Corporation ('naamloze of besloten vennootschap'), the same applies to the value of the portion of the property (part of all assets and liabilities) that the legal person**) which continues to exist retains, increased with the value of the shares it acquires at the division in the capital of the acquiring legal person***).

*) This provision applies when an Association ('vereniging'), Cooperative ('coöperatie'), Mutual Insurance Society ('onderlinge waarborgmaatschappij') or Foundation ('stichting') is a legal person which acquires (a part of) the property of the legal person subject to division.
**) This provision applies when an Association ('vereniging'), Cooperative ('coöperatie'), Mutual Insurance Society ('onderlinge waarborgmaatschappij') or Foundation ('stichting')is the legal person subject to division from which property passes on to other legal persons.
***) The value of the retained property and of the shares received in return for transferred property must, when added together, at least be zero.

Article 2:334e Position of members and shareholders
- 1. The members or shareholders of the dividing legal person become as a result of the division a member or shareholder of all acquiring legal persons.
- 2. No shares in the capital of an acquiring Corporation are acquired for shares in the capital of a dividing Corporation that are held by or on behalf (for account) of that acquiring Corporation or by or on behalf (for account) of the dividing Corporation.
- 3. Paragraph 1 shall neither apply insofar as:
a. the acquiring legal persons are Open or Closed Corporations ('naamloze of besloten vennootschappen') formed (incorporated) at the division and the dividing legal person acquires all shares therein at the division;
b. Article 2:334cc or Article 2:334ii is applied with respect to the acquiring Corporation;
c. pursuant to the exchange ratio of shares not even an entitlement to one single share exists.

Article 2:334f Division proposal and its content
- 1. The Board of Directors of the parties to the division shall prepare a division proposal.
- 2. This proposal shall at least include:
a. the type, name and seat (registered office) of the parties to the division and, insofar the acquiring legal persons are formed (incorporated) at the division, of those legal persons;
b. the articles of incorporation of the acquiring legal persons and of the dividing legal person which continues to exist, as these articles of incorporation read before and after the division or, insofar the acquiring legal persons are formed (incorporated) at the division, the draft for the notarial deed of incorporation;
c. whether the entire property (assets and liabilities) of the dividing legal person shall pass over or a part thereof;
d. a description by which can be determined in an accurate way which assets and liabilities of the dividing legal person will pass to each of the acquiring legal persons and, if not the entire property (all assets and liabilities) of the dividing legal person shall pass over, which assets and liabilities it will retain, as well as a pro forma profit and loss account or trading account of the acquiring legal persons and of the dividing legal person which continues to exist;
e. the value assessed on a date to which the annual account or interim capital account meant in Article 2:334g, paragraph 2, of the dividing legal person relates, and calculated with due observance of the third sentence of that paragraph, of the portion of the property (assets and liabilities) that each acquiring legal person shall acquire and of the portion that will be retained by the dividing legal person which continues to exist.
f. the rights or compensations that pursuant to Article 2:334p are granted for account of the acquiring legal persons to those who, in another capacity than as member or shareholder, may exercise particular rights against the dividing legal person, like rights to a distribution of profits or rights to take (acquire) shares, and as of which date such granting is made;
g. the benefits granted in connection with the division to Directors and Supervisory Directors of a party to the division or to someone else involved at the division;
h. the intentions with regard to the composition, after the division, of the Board of Directors of the acquiring legal persons and of the dividing legal person which continues to exist and, to the extent that there will be Supervisory Boards, of those Supervisory Boards;
i. the day as of which the financial data for each portion of the property (assets and liabilities) that shall pass over will be accounted for in the annual accounts or other financial statements of the acquiring legal persons;
j. the proposed measures relating to the acquisition by the members or shareholders of the dividing legal person of the membership or share ownership of the acquiring legal persons;
k. the intentions regarding the continuation or termination of operations;
l. which person or body, where appropriate, has to approve the resolution for a division.
- 3. The division proposal is signed by the Directors of each party to the division; when the signature of one or more of them is missing, this will be reported, with mention of the reasons therefor.
- 4. Unless all parties to the division are Associations ('verenigingen') or Foundations ('stichtingen'), the proposal for a division must be approved by the Supervisory Boards and will be signed by all Supervisory Directors; when the signature of one or more of them is missing, this will be reported, with mention of the reasons therefor. The division proposal mentions furthermore the impact of the division on the amount (size) of goodwill and distributable reserves of the acquiring legal persons and of the dividing legal person which continues to exist.

Article 2:334g Written explanation; annual account and interim capital account
- 1. The Board of Directors of each party to the division shall, in a written explanation, mention the reasons for the division, including a clarification of effects to be expected on operations, and a further commentary from a legal, economical and social point of view.
- 2. If the last accounting year (financial year) of the legal person, with regard to which an annual account or another financial statement has been adopted, has expired more than six months before the division proposal is deposited or disclosed for public inspection, the Board of Directors shall prepare a separate annual account or interim capital account. Such account shall relate to the state of the legal person’s property (assets and liabilities) on a day not earlier than the first day of the third month before the month in which the division proposal was deposited for inspection. It is prepared in accordance with the lay-out (arrangement) and valuation methods that have been used in the last adopted annual account or other financial statement, unless the grounds for a deviation are well substantiated and relate to the fact that the current (up to date) value differs significantly form the book value. The reserves that have to be maintained pursuant to law or the articles of incorporation have to be included in that account.
- 3. Paragraph 2 does not apply if the legal person meets the requirements concerning the half-yearly financial accounting as referred to in Article 5:25d of the Financial Supervision Act.

Article 2:334h Documents to be deposited at the commercial register
- 1. Each party to the division shall deposit for inspection at the office of the commercial register or makes available for inspection there by electronic means of communication:
a. the division proposal;
b. the last three adopted annual accounts or other financial statements of the parties to the division, including the accountant’s audit opinion, insofar as these documents are or have to be deposited (made available) for public inspection;
c. the annual reports of the parties to the division over the last three accounting years (financial years), insofar as these documents are or have to be deposited (made available) for public inspection;
d. interim capital accounts or not yet adopted annual accounts, insofar as such documents are required pursuant to Article 2:334g, paragraph 2, and insofar as the annual accounts of the legal person have to be deposited (made available) for public inspection.
- 2. At the same time, the Board of Directors shall deposit for public inspection the before meant documents, including the annual accounts and annual reports that do not have to be made available for public inspection, together with the explanation of the Boards of Directors, at the office of the legal person or, in the absence of such an office, at the residence of one of the Directors, or makes these documents available by electronic means of communication. Up until the merger, and for a period of at least six months thereafter, these documents shall remain available at the address of the legal person or, respectively, at the address of the residence of the involved Director for inspection or remain available by electronic means of communication for inspection, all on behalf of the members or shareholders and of those who may exercise a particular right against the legal person, like a right to a distribution of profits or the right to take (acquire) shares. During that period the before mentioned persons are entitled to receive, free of charge, a copy of these documents. A copy may be provided by electronic means of communication if a member or shareholder has agreed to that. The legal person is not obliged to provide copies in the event that the members or shareholders have the possibility to save (record) an electronic copy of the document.
- 3. The legal persons to be merged shall announce in a national daily newspaper that the before meant documents are deposited for inspection or can be checked, with mention of the public registers where they can be found or where they are electronically available and of the address where they are deposited pursuant to paragraph 2 or where they are electronically available for inspection.
- 4. If the Works Council or Employee Participation Council of a party to the division, or an Association of Workers (union) of which employees of the legal person or its subsidiaries are a member, has filed a written advise or written comments, then this advise or these comments shall be deposited, simultaneously with the division proposal or immediately after they have been received, at the address meant in paragraph 2. The second up and including the fifth sentence of paragraph 2 shall apply accordingly.
- 5. If the Boards of Directors of the parties to the division amends (changes) the division proposal, then paragraph 1 up to and including 4 shall apply accordingly.
- 6. Paragraph 2 and 4 do not apply to Foundations ('stichtingen').

Article 2:334i Change of circumstances
- 1. The Board of Directors of each party to the division is obliged to inform the General Meeting and the other parties to the division about any important change in the assets and liabilities that appeared after the division proposal and that has affected the statements in the division proposal or in the explanation.
- 2. Within a Foundation ('stichting') this obligation has to be complied with towards those who, according to the articles of incorporation, have to approve the division.

Article 2:334j Passage of an entire legal relationship of the dividing legal person
- 1. A legal relationship to which the dividing legal person is a party, may only pass over in its entirety, on the penalty that an objection as meant in Article 2:334l will be declared valid.
- 2. However, where a legal relationship is connected to different assets or liabilities which pass over to various acquiring legal persons, it may be split in such a way that it passes over to all acquiring legal persons in proportion to the connection that exists between the legal relationship and the assets or liabilities that each of these legal persons acquires.
- 3. Where a legal relationship is connected as well to assets or liabilities that are retained by the dividing legal person which continues to exist, paragraph 2 shall apply accordingly with respect to that legal person.
- 4. Paragraph 1 up to and including 3 do not affect the rights which the counterparty to a legal relationship may derive from Article 2:334k and 2:334r.

Article 2:334k Guarantees for creditors
Where a creditor of one of the parties to the division demands that security or another guarantee for the performance of his debt-claim is provided, at least one of the parties to the division has to provide such security or guarantee, on the penalty that an objection as meant in the following paragraph will be declared valid. This, however, does not apply if the creditor has adequate guarantees already or if the financial position of the legal person which will be his debtor after the division does not offer less guarantees for the performance of the debt-claim than before.

Article 2:334l Objections against the division raised by creditors
- 1. Up until one month after the moment on which all parties to the division have made the announcement that the division proposal has been deposited or disclosed for public inspection, each creditor may, by means of a petition lodged with the District Court, raise an objection against the division on the ground that this proposal is in conflict with Article 2:334j or that a guarantee sought pursuant to Article 2:334k is not given. The District Court shall deny the request if the applicant has not made plausible that the financial state of the acquiring legal person after the division provides less guarantees that the debt-claim will be satisfied, and that not sufficient guarantees have been obtained from the legal person.
- 2. Before the court shall give its decision, it may grant the parties to the division the opportunity to amend (change) the division proposal within a period set by court, and to publish the amended (changed) proposal in conformity with Article 2:334h, or to provide a guarantee specified by the court.
- 3. If an objection is raised in time, the notarial deed of division may be executed only when the objection is withdrawn or the termination of the objection has become enforceable.
- 4. If the notarial deed of division has been executed already, the court may, in regard of an instituted legal action or legal remedy:
a. order that a legal relationship which has passed over in conflict with Article 2:334j, must be transferred, in full or in part, to one or more acquiring legal persons to be designated by the court or to the divided legal person which continues to exist, or order that two or more of these legal persons are jointly and severally liable for the obligations resulting from that legal relationship;
b. order that a guarantee specified by the court has to be provided.
The court may render such order under a periodic penalty payment set by the court in the event of non-compliance.
- 5. If the transferring or acquiring legal person sustains a loss or disadvantage due to a transfer meant in paragraph 4, under (a), then the other legal person is obliged to make up for that loss or disadvantage.

Article 2:334m Body within the legal person that adopts the resolution for a division
- 1. The resolution for a division is adopted (passed) by the General Meeting; within a Foundation ('stichting') such a resolution is adopted (passed) by those who are empowered to amend the articles of incorporation or, if no one is allowed to make such an amendment, by the Board of Directors. The resolution may not differ from the division proposal.
- 2. A resolution for a division may be adopted (passed) only on the expiry of one month since the day on which all parties to the division have announced that the division proposal is deposited or disclosed for public inspection.
- 3. A resolution for a division is adopted (passed) in the same manner as a resolution to amend the articles of incorporation. Where, according to the articles of incorporation, such an amendment requires the approval of another body or person, this requirement shall apply as well to a resolution for a division. When the articles of incorporation require different voting majorities for the amendment of separate provisions of the articles of incorporation, then a resolution for a division requires the largest of these voting majorities. When the articles of incorporation rule out (exclude) the possibility to amend the provisions of the articles of incorporation, then the votes of all members or shareholders entitled to vote are required. The preceding two sentences remain inapplicable when the involved provisions of the articles of incorporation continue to apply unabated after the division.
- 4. Paragraph 3 does not apply where the articles of incorporation provide for a different arrangement for resolutions for a division.
- 5. A resolution for a division of a Foundation ('stichting') requires the approval of the District Court, unless the articles of incorporation make it possible to amend all of its provisions. The District Court denies a request for such approval if there are well-founded grounds to believe that the division is contrary to the interests of the Foundation ('stichting').

Article 2:334n Notarial deed of division; date that the division takes effect
- 1. The division is effectuated by notarial deed and shall take effect from the day following the one on which that deed is executed. The notarial deed of division may only be executed within six months after the announcement that the division proposal has been deposited or disclosed for inspection or, if this is not allowed as a result of a raised objection, within one month after the withdrawal of that objection or after the termination of that objection has become enforceable.
- 2. At the end of the notarial deed of division the notary shall certify that it has appeared to him that all formal requirements for the necessary resolutions, imposed pursuant to the present and the following Sections and the articles of incorporation for the realization of a division, have been met, and that furthermore all other requirements, imposed pursuant to the present and following Sections and the articles of incorporation, have been observed.
- 3. Within eight days after the execution of the notarial deed of division, each of the acquiring legal persons and the divided legal person shall cause the registration of the division in the commercial register. If the divided legal person has ceased to exist at the division, then each of the acquiring legal persons is obliged to make a registration. At each registration, a copy of the notarial deed of division, including the notarial certification at the end thereof, shall be deposited at the office of the register.
- 4. The acquiring legal persons, each insofar as it concerns assets and liabilities that have passed to them at the division, shall report the division within one month after it has taken effect to the keepers of other public registers where a passage (transfer) of rights or the division can be registered. Where registered property has passed to an acquiring legal person as a result of the division, the divided legal person or, if that legal person has ceased to exist, each of the acquiring legal persons is obliged to present, within this period, the documents required for registration of a division to the keeper of the public registers meant in Section 1 of Title 1 of Book 3.

Article 2:334o Pledge or usufruct on membership rights or shares in the divided legal person
- 1. The proprietor (holder) of a pledge or usufruct on a membership right or on shares in the capital of the dividing legal person acquires the same real property right on what the involved member or shareholder acquires pursuant to the notarial deed of division. When the dividing legal person continues to exist after the division, the existing pledge or usufruct will besides continue to exist as well.
- 2. When a pledge or usufruct was established on a membership right or a share for which nothing else comes in the place, then the acquiring legal persons must provide an equivalent substitution to the proprietors of the before meant real property rights.

Article 2:334p Particular rights that may be exercised against a divided legal person
- 1. A person who, other than in his capacity as member or shareholder, may exercise a particular right against the dividing legal person, like a right to a distribution of profits or a right to take (acquire) shares, must either obtain so many rights in the acquiring legal persons that these rights, if appropriate together with the right that he still may exercise against the dividing legal person which continues to exist, are equivalent to his right prior to the division, or he must obtain a compensation.
- 2. In the absence of an agreement on such compensation, this compensation shall be assessed by one or more impartial experts, to be appointed by the provisional relief judge of the District Court in whose judicial territory the domicile of the dividing legal person is located, upon the request of either party.
- 3. Article 2:334o shall apply accordingly to a pledge or usufruct that was established on such particular rights.

Article 2:334q Last accounting year and last annual account; statutory reserves
- 1. If the divided legal person ceases to exist at the division, then its last accounting year (financial year) shall end upon the day as of which the financial data regarding its property (assets and liabilities) are accounted for in the annual accounts or other financial statements of the acquiring legal persons.
- 2. If the divided legal person ceases to exist at the division, the obligations regarding its annual accounts or other financial statements shall, after the division, be incumbent on the acquiring legal persons jointly.
- 3. Valuation differences between the assessment of the assets and liabilities in the last annual accounts or other financial statements of the divided legal person and in the first annual accounts or other financial statements in which the acquiring legal person accounts for those assets and liabilities, must be explained.
- 4. The acquiring legal persons have to create statutory reserves in the same way as in which the divided legal person had to maintain statutory reserves, unless the statutory basis for maintaining such reserves has elapsed.

Article 2:334r Amendment or dissolution of existing agreements by the court
- 1. Where the division leads to the result that an agreement of a party to the division, to standards of reasonableness and fairness, should not be continued unchanged, the court shall amend or dissolve that agreement upon the request of one of the involved parties. Such amendment or dissolution may be ordered with retroactive effect.
- 2. The right to bring a legal claim (right of action) as meant in the previous paragraph ceases to exist on the expiry of six months since the notarial deed of division was deposited for inspection at the office of the public registers of the domiciles of the acquiring legal persons and of the divided legal person.
- 3. If the counterparty suffers damage as a result of an amendment or dissolution of the agreement, then the involved legal person is obliged to pay compensation to him.

Article 2:334s Uncertainty after the division to which legal person assets or liabilities belong
- 1. Paragraph 2 up to and including paragraph 4 shall apply if it is not possible, after the division, to determine on the basis of the notarial deed of division to which legal person an asset or liability belongs.
- 2. When the entire property (all assets and liabilities) of the divided legal person has passed over, then an asset or liability as meant in paragraph 1 shall belong to the acquiring legal persons jointly. Each acquiring legal person has a share in that asset or liability in proportion to the value of the portion of the property (part of all assets and liabilities) of the divided legal person that it has acquired.
- 3. When not the entire property (not all assets and liabilities) has passed over, then an asset or liability as meant in paragraph 1 shall belong to the divided legal person.
- 4. As far as acquiring legal persons are liable for debts (liabilities) on account of paragraph 2, they shall be jointly and severally liable.

Article 2:334t Liability for debts of the divided legal person
- 1. The acquiring legal persons and the divided legal person which continues to exist are liable for obligations of the divided legal person existing at the time of the division.
- 2. Where it concerns indivisible obligations, the acquiring legal persons and the divided legal person which continues to exist are each jointly and severally liable for the entire obligation.
- 3. Where it concerns divisible obligations, the acquiring legal person to which the obligation has passed or, if the obligation has not passed to an acquiring legal person, the divided legal person which continues to exist is liable for the entire obligation. The liability for such divisible obligations of any other legal person involved at the division is limited to the value of the property (assets and liabilities) that it has acquired or retained at the division.
- 4. Other legal persons than the legal person to which the obligation has passed or, if the obligation has not passed to an acquiring legal person, than the dividing legal person which continues to exist do not have to perform that obligation before the last meant legal person has failed to comply with this obligation.
- 5. The statutory provisions for jointly and severally liable debtors apply accordingly to the liability meant in the present Article.


Article 2:334u Annulment of a division
- 1. The court may only annul a division:
a. if the notarial deed of division, signed by the notary, is not an authentic document;
b. on the ground of a failure to comply with Articles 2:334b, paragraph 5 or 6, 2:334l, paragraph 3, or the first sentence of Article 2:334n, paragraph 2;
c. if a resolution of the General Meeting or, in the event of a Foundation ('stichting'), of the Board of Directors, required for the division, is null and void, not in force or subject to a ground of voidability;
d. on the ground of a failure to comply with Article 2:334m, paragraph 5.
- 2. The nullification is effectuated by a decision of the court in whose judicial territory the domicile of the divided legal person is located, rendered upon a legal claim (right of action) against all acquiring legal persons and the divided legal person which continued to exist, brought by a member, shareholder, Director or other interested party. A merger which is not nullified by the court, is valid.
- 3. The right to file a legal claim (right of action) for annulment of the division ceases to exist when the defect (failure) is repaired, or on the expiry of six months since the notarial deed of division was deposited for inspection at the office of the public registers of the domiciles of the acquiring legal persons and the divided legal person which continues to exist.
- 4. A division shall not be annulled:
a. if the defect (failure) has been repaired within a period set by the court;
b. if it would be difficult to undo the effects of the division that already have set in.
- 5. Where the plaintiff, who has filed a legal claim (right of action) for annulment of the division, has suffered damage as a result of a defect (failure) which could have led to an annulment, and the court does not annul the division, then the court may order the acquiring legal persons to pay compensatory damages. The legal persons may take recourse for this against those who are to blame for the defect (failure) and, although not beyond the advantage conferred, against those who have gained a benefit from the defect (failure)..
- 6. The clerk of the court where the legal claim (right of action) was last pending, shall ensure that the annulment gets registered at the commercial register.
- 7. The divided legal person is, next to the involved acquiring legal person, jointly and severally liable for obligations which have come to existence for account of the acquiring legal persons in the period after the division en prior to the moment on which the annulment was registered in the public registers.
- 8. The final and binding decision of the court to annul the division is binding for everyone. It is not possible for third parties to raise an objection; a revocation is neither possible.

Section 2.7.5 Special statutory provisions for divisions through which an Open or Closed Corporation is divided or formed

Article 2:334v Application of the present Section
The present Section (Section 2.7.5) applies if, under a division, an Open or Closed Corporation ('naamloze of besloten vennootschap') is divided or formed (incorporated).

Article 2:334w Additional requirements for the capital of a divided Corporation
At the time of the division, the value of the portion of the property retained by the dividing Corporation which continues to exist, increased with the value of the shares it acquires at the division in the capital of the acquiring legal persons, must at least equal the paid and called up portion of the capital plus the reserves that the Corporation immediately after the division has to maintain by law or the articles of incorporation.

Article 2:334x Shares (exchange ratio, surcharges, withdrawal)
- 1. If shares or depositary receipts for shares are admitted to a regulated market or multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not a Member State, then the exchange ratio may be made dependant on the price of those shares, respectively, those depository receipts on that market or trading facility on one or more moments to be determined in the division proposal, chosen before the day on which the division takes effect.
- 2. Where there is an entitlement to money or debt-claims (debt receivables) on account of the exchange ratio of shares, the total joint amount thereof may not exceed one-tenth of the nominal amount of the shares allotted by the involved Corporation.
- 3. In the notarial deed of division an acquiring Corporation may withdraw shares in its own capital, held either by itself or acquired pursuant to the notarial deed of division, to at the most the nominal amount of the shares it allots to its new shareholders. Articles 2:99, 2:100, 2:208 and 2:209 do not apply in that event.
- 4. Shares in the capital of the dividing Corporation, held by or on behalf (for account) of an acquiring legal person or by or on behalf (for account) of the dividing Corporation, cease to exist if the dividing Corporation ceases to exist at the division.

Article 2:334y Additional information in the division proposal
The division proposal states in addition to the items listed in Article 2:334f :
a. the exchange ratio of shares and, where applicable, the amount of the payments made on account of the exchange ratio;
b. as of which moment and to what extent the shareholders of the dividing Corporation will share (participate) in the profits of the acquiring Corporations;
c. how many shares possibly might be withdrawn under application of Article 2:334x, paragraph 3.

Article 2:334z Additional information in the written explanation
The Board of Directors must report in the written explanation on the division proposal:
a. according to which method or methods the exchange ratio of shares is established;
b. whether this method or these methods were appropriate in this particular event;
c. to which valuation each method resulted;
d. if more than one method is used: whether the comparative importance of the used methods, as applied in the valuation, is regarded as acceptable to generally applicable standards, and;
e. which particular difficulties, if any, have been encountered when making the valuation and when establishing the exchange ratio.

Article 2:334aa Auditors certificate and report for additional items
- 1. An auditor (accountant) as meant in Article 2:393, appointed by the Board of Directors, has to examine the division proposal and certify whether the proposed exchange ratio of shares, in view of, among others, the documents attached to it, is reasonable in his opinion.
- 2. If the dividing Corporation continues to exist after the division, the auditor (accountant) must, furthermore, certify that the value of the portion of the property (part of the assets and liabilities) which the Corporation shall retain, increased with the value of the shares it acquires at the division in the capital of the acquiring legal persons, determined to the day to which its annual account or interim capital account relates, at least equalled, under the application of generally accepted standards for valuation methods, the paid and called up portion of the capital, increased with the reserves which the Corporation immediately after the division has to maintain pursuant to law or the articles of incorporation.
- 3. The auditor (accountant) also has to prepare a report stating his opinion about the written explanation of the Board of Directors meant in Article 2:334z.
- 4. If two or more of the parties to the division are Open Corporations, then only the same person may be appointed as auditor (accountant) if the President of the Enterprise Chamber ('Ondernemingskamer') of the Amsterdam Court of Appeal has approved such appointment upon a uniform request.
- 5. The auditors (accountants) are equally competent to hold their examination at all parties to the division.
- 6. Article 2:334h applies accordingly to the certificate (statement) of the auditor (accountant); Article 2:334h, paragraph 2 and 3, applies accordingly to the report of the auditor (accountant) .
- 7. Paragraph 1 and 3 do not apply when the shareholders of each party to the division have agreed with that.

Article 2:334bb Statutory provisions applicable to an allotment of shares by an acquiring Corporation
- 1. Article 2:94a and Article 2:94b apply accordingly with respect to shares allotted by an acquiring Open Corporation ('naamloze vennootschap'). A certificate of an auditor (accountant) that is required pursuant to Article 2:94a or 2:204a, however, does not have to be attached to the notarial deed of incorporation.
- 2. Article 2:334h applies accordingly to a certificate of an auditor (accountant) required pursuant to paragraph 1.

Article 2:334cc Possible apportionment of shares in case of a pure division
- 1. In case of a pure division the notarial deed of division may provide that different shareholders of the dividing legal person will become shareholder of different acquiring legal persons. In such event:
a. the division proposal mentions, in addition to the items mentioned in Articles 2:334f and 2:334y, which shareholders shall become shareholder of which acquiring legal person;
b. the Board of Directors reports in its explanation on the division proposal according to which standards this apportionment of shares has been established;
c. the auditors (accountants) referred to in Article 2:334aa must certify as well that the proposed apportionment of shares, in view of, among others, the documents attached to it, is reasonable in his opinion, and;
d. the resolution for a division must be adopted (passed) by the General Meeting with a majority of three-fourths of the votes cast at a meeting in which 95 % of the issued share capital is represented .
- 2. Paragraph 1, under (c), remains inapplicable if the shareholders of each party to the division agree with that.

Article 2:334dd Right of inspection of holders of depository receipts for shares
Article 2:334h, paragraph 2, shall apply as well for holders of depository receipts for shares issued in collaboration with the Corporation.

Article 2:334ee Division resolution of the General Meeting
- 1. The General Meeting’s resolution for a division requires in any event at least a majority of two-thirds if less than one-half of the issues share capital is represented at the meeting .
- 2. When there are different types (classes) of shares, then, in addition to the division resolution of the General Meeting, a prior or simultaneous approving resolution (decision) is required of each group of holders of shares of the same type (class) whose rights are affected by the division. Article 2:231, paragraph 4, does not apply in regard of a resolution for a division. The required approval can be given only when one month has passed since the day on which all parties to the division have announced that a division proposal is deposited or disclosed for inspection.
- 3. The minutes of General Meetings where the resolution for a division has passed or where it has been approved pursuant to paragraph 2 are drawn up by notarial deed.

Article 2:334ff Division resolution of the Board of Directors
- 1. Unless the articles of incorporation provide otherwise, an acquiring Corporation may resolve (decide) to a division by a resolution of the Board of Directors. The same applies for the dividing Corporation, provided that all acquiring Corporations formed at the division are Open or Closed Corporations ('naamloze of besloten vennootschappen') and the dividing Corporation will become, at the division, the sole shareholder therein.
- 2. Such resolution (decision) of the Board of Directors, however, can be adopted (passed) only if the Corporation has mentioned that it intends to pass such resolution in the announcement that the division proposal has been deposited for inspection.
- 3. Such resolution (decision) cannot be adopted (passed) if one or more shareholders representing together at least one-twentieth of the issued share capital, or such lesser part as specified in the articles of incorporation, have requested the Board of Directors within one month after the before meant announcement to convene a General Meeting in order to decide on the division. Articles 2:334m and 2:334ee are applicable in such event.
- 4. If the acquiring legal person holds all shares in the dividing Corporation, then the dividing Corporation may resolve (decide) by a resolution of the Board of Directors to enter into the division, unless its articles of incorporation provide otherwise.

Article 2:334gg [repealed on 01-07-2011]

Article 2:334hh Divided legal person becomes sole shareholder of all formed acquiring Corporations
- 1. If all acquiring Corporations are formed (incorporated) at the division, and the dividing legal person will become, at the division, their sole shareholder, then Articles 2:334f, paragraph 4, fist sentence, 2:334w and 2:334y up to and including 2:334aa do not apply.
- 2. If all acquiring Corporations are formed (incorporated) at the division and the shareholders of the dividing Corporation shall become, in proportion to their shares in the dividing Corporation, shareholders of these Corporations to be formed, then the Articles 2:334g, 2:334y up to and including 2:334bb are not applicable.

Article 2:334ii Triangle division; group company
- 1. The notarial deed of division may provide that the shareholders of the dividing Corporation become shareholder of a group company of an acquiring Corporation. In that case those shareholders will not become a shareholder of that acquiring Corporation.
- 2. Such a division is possible only if the group company, solely or jointly with another group company, provides for the entire issued share capital of the acquiring Corporation. Articles 2:334m, paragraph 1 up to and including 4, 2:334ee and 2:334ff apply accordingly to the resolution (decision) of the involved group company.
- 3. The obligations to which an acquiring Corporation is subjected under Articles 2:334f up to and including 2:334dd are incumbent on such group company, with the exception of the obligations under Articles 2:334k up to and including 2:334m and 2:334q, paragraph 2 and 4. For the purpose of Article 2:334aa, paragraph 4, such a group company remains excluded; Articles 2:334s, 2:334t and 2:334u, paragraph 7, do not apply to that group company. In such event Articles 2:334f, paragraph 2, under (b), 2:334x, paragraph 3 and 2:334y, under (b), do not apply to the acquiring Corporation. For the purpose of Articles 2:94b and 2:204b, the acquisition by the acquiring Corporation and the allotment of shares by a group company are regarded as to be made by the same Corporation.