Dutch Civil Code

Book 2 Legal Persons

Title 2.8 Rules for resolving disputes and the right of inquiry

Section 2.8.1 Rules for resolving disputes between shareholders

Article 2:335 Application of the statutory provisions of the present Section
- 1. The provisions of the present Section (Section 2.8.1) shall apply to Closed Corporations ('besloten vennootschappen')*).
- 2. The provisions of the present Section (Section 2.8.1) shall also apply to Open Corporations ('naamloze vennootschappen') whose articles of incorporation:
a. provide for registered shares only;
b. contain a restriction on transfer of shares, and;
c. do not allow that depository receipts to bearer of shares are issued in collaboration with the Open Corporation ('naamloze vennootschap').

*) A Closed Corporation ('besloten vennootschap') is the equivalent of a private company with limited liability under English law.
**) An Open Corporation ('naamloze vennootschap') is the equivalent of a public limited liability company under English law.

Article 2:336 Legal claim for a forced transfer of shares (buy-out)
- 1. One or more shareholders who solely or jointly have provided at least one third of the issued share capital, may claim in court from another shareholder who, through his conduct, harms or has harmed the interests of the Corporation in such a way that a continuation of his share ownership reasonably can be tolerated no longer, that he transfers his shares in conformity with Article 2:341.
- 2. Such a legal claim (right of action) cannot be filed by the Corporation or one of its subsidiary companies. A holder of shares of which the Corporation or one of its subsidiary companies holds depository receipts, is only able to file such a legal claim (right of action) if and insofar as depository receipts are held by others. A shareholder holding shares for administrative purposes only is only able to file such a legal claim (right of action) with respect to shares administered by him if the involved holders of depository receipts have agreed to this in advance.
- 3. The District Court of the domicile of the Corporation has exclusive jurisdiction in first instance over a legal claim (right of action) as meant in the previous paragraphs. An appeal against its decision can be lodged only with the Enterprise Chamber ('ondernemingskamer') of the Amsterdam Court of Appeal. Article 344 of the Code of Civil Procedure shall apply in such event, on the understanding that ‘a full bench’ is read as ‘Enterprise Chamber’.
- 4. The court may stay its decision on the legal claim (right of action) for a period to be set by it if it has appeared during the legal proceedings that the Corporation or one or more of its shareholders are willing to take measures through which the damage (disadvantage) suffered by the Corporation will be made undone or limited as much as possible.
- 5. The court meant in paragraph 3, first and second sentence, has jurisdiction also over legal claims (rights of action) connected with the conduct as referred to in paragraph 1 between the same parties or between one of the parties and the Corporation.

Article 2:337 Exclusive character of a regulation for resolving disputes in the articles of incorporation or an agreement
- 1. If the articles of incorporation or an agreement enclose an arrangement for resolving disputes as meant in the present Section (Section 2.8.1), then it is not possible to appeal to that arrangement derogating from the present Section, to the extent that it makes the transfer of shares impossible or extremely difficult.
- 2. The articles of incorporation or an agreement may provide that disputes as meant in the present Section, are immediately brought to the knowledge of de Enterprise Chamber ('Ondernemingskamer') of the Court of Appeal of Amsterdam or are subjected to arbitration, or that in another way is derogated from the jurisdiction of the courts as referred to in Article 2:336, paragraph 3 and 5.

Article 2:338 Defendant cannot dispose of his shares or encumber them with a pledge or usufruct
- 1. After the writ of summons has been officially served on the defendant up until the day that the judgment has become final and binding, the defendant cannot dispose of his shares, nor is he able to encumber them with a pledge or usufruct, unless the plaintiffs have given their consent thereto. If the plaintiffs refuse to give their consent, the court before which the dispute is pending, may grant, upon the demand of the defendant, its authorisation if the defendant has a reasonable interest in such a juridical act. No appeal or other legal remedy is available against a decision of the court on such a demand.
- 2. After the legal claim has been awarded by the court, the defendant can only transfer the shares with due observance of the provisions of Articles 2:339 up to and including 2:341.
- 3. A temporary provision as meant in Article 233 of the Code of Civil Procedure can be granted with effect up until the moment that the shares are transferred. A legal claim to grant such temporary provision is considered with the utmost speed.

Article 2:339 Appointment of experts
- 1. If the legal claim is awarded, the court shall appoint one or more experts to report in writing about the price of the shares. Furthermore, Articles 194 up to and including 200 of the Code of Civil Procedure shall apply. Articles 2:351 and 2:352 shall apply accordingly. It is only possible to appeal against the judgment in which the legal claim is awarded simultaneously with an appeal against the judgment referred to in Article 2:340, paragraph 1, unless the court had decided otherwise. No legal remedy is available against the appointment of experts.
- 2. Where an arrangement regarding the assessment of the value of shares applies between parties on the basis of the articles of incorporation or an agreement within the meaning of Article 2:337, paragraph 1, the experts shall make their report with due observance of that arrangement.
- 3. In derogation from paragraph 1, the court may skip an appointment of experts if parties agree on the value of the shares and also if the articles of incorporation or an agreement within the meaning of Article 2:337, paragraph 1, contains clear criteria for the assessment of the value of the shares and the court is without effort able to assess the price on the basis thereof. .

Article 2:340 Fixation of the price of the shares by the court
- 1. Where experts have been appointed, the court shall fix the price of the shares after the experts have delivered their written report. In the same judgment the court shall determine which of the parties has to bear the costs of the expert's report. After having heard the Corporation on this matter, the court may also decide that the Corporation has to bear these costs. The court may divide these costs between the parties mutually or between the parties or one of them and the Corporation.
- 2. Where no experts are appointed, the court shall fix the price of the shares in the judgement in which the legal claim is awarded.
- 3. The court shall not take into account an arrangement in the articles of incorporation or an agreement regarding the assessment of the value of the shares as far as this would lead to an apparently unfair (unreasonable) price.
- 4. The judgement includes additionally an order of the court to the plaintiffs to pay in money (in cash), if necessary after application of Article 2:341 paragraph 5, the fixed price of the shares that are to be transfer to them. If Article 2:341 paragraph 6 applies, this court order also affects the holders of depository receipts issued for the shares who have agreed with the action of the plaintiffs to bring the legal claim to court.

Article 2:341 Transfer (delivery) of the involved shares
- 1. Within two weeks after a copy of the judgment meant in Article 2:340 paragraph 1 has been officially served on the defendant, the defendant is obliged to transfer (deliver) his shares to the plaintiffs, and the plaintiffs are obliged to take delivery of these shares against simultaneous payment of the fixed price, except as provided in paragraph 2. When the judgement has not been declared enforceable immediately, an official service of it on the defendant shall only have the effect meant in the first sentence if that official service is done after the judgement has become enforceable immediately after all or after it has become final and binding. The taking of delivery shall occur as much as possible in proportion to the value of each plaintiff’s shareholding, unless agreed otherwise. Shareholders who have joined the plaintiffs as a party in the legal proceedings and who have expressed, when doing so, that they wish to be placed in the same position as the plaintiffs, are equated for this purpose with the plaintiffs.
- 2. Where the shareholder who wants to alienate one or more of his shares, has to offer them pursuant to Article 2:195 or an arrangement in the articles of incorporation firstly to his co-shareholders or others, the Corporation shall, without delay after a copy of the judgement was officially served on it, offer these shares in the name of the defendant, as his representative, to the shareholders or others, as much as possible with corresponding application of the law or the arrangement in the articles of incorporation, and it shall simultaneously inform those shareholders or others about the fixed price of the shares. Within one month after this offer was sent to them, they may accept it by notifying the Corporation in writing of their acceptance. Within one week after the before mentioned period has expired, the Corporation shall notify the defendant and the plaintiffs whether, and if so, how many shares have been accepted and to whom these are allocated. After receipt of this notification the defendant must, without delay, transfer (deliver) his shares to the involved co-shareholders or other persons against simultaneous payment of the price.
- 3. Where, in the situation meant in paragraph 2, no shares have been accepted or less shares have been accepted than there were offered, or the fixed price has not been paid within two weeks after the defendant, who wanted to proceed to a simultaneous transfer, received the notification of the Corporation regarding the allocation of shares, the provisions of paragraph 1 apply in respect of the shares, the remaining shares or the shares for which no timely payment was received. Paragraph 1, second sentence, shall apply accordingly.
- 4. Where the defendant is in default of transferring (delivering) his shares, the Corporation transfers (delivers) these shares in his name against simultaneous payment by the persons acquiring these shares.
- 5. Where one or more plaintiffs are in default of taking delivery of the shares against simultaneous payment of the fixed price, the other plaintiffs must, within two weeks after such default has been established, take delivery of the involved shares against simultaneous payment of the price, each of them as much as possible in proportion to the value of his shareholding.
- 6. When a plaintiff is a shareholder for administrative purposes only, the holders of depository receipts who have agreed with the plaintiffs’ action to bring the legal claim to court are liable, next and in addition to that plaintiff, for what is indebted under the present Article, each of them as much as possible in proportion to the value of his holding of depository receipts. Where one or more of these holders of depository receipts are in default, the other holders of depository receipts who have agreed with the plaintiffs’ action to bring the legal claim to court are obliged to satisfy that missing part, each of them as much as possible in proportion to the value of his holding of depository receipts.
- 7. Upon the request of a party, the court that has awarded the legal claim in first instance or on appeal shall decide on any dispute relating to the implementation (performance) of the transfer or payment. No appeal or other remedy is available against such court decision.

Article 2:341a Legal effects when the judgement is declared void afterwards
- 1. Where a judgment as referred to in Article 2:340, paragraph 1, is declared invalid (void) after a legal remedy has been filed against it, the legal ground for the acts performed on the basis of that judgement remain intact, but an obligation shall come into existence to undue the legal effects that already have set in.
- 2. When it is difficult to undo the legal effects that already have set in, the court may, if requested, limit or exclude the obligation to undo these legal effects. It may impose on the party, who as a result thereof obtains an unfair (unreasonable) advantage, the obligation to make a payment in money to the party who has been damaged as a result thereof.

Article 2:342 Forced passage of voting rights
- 1. One or more shareholders who solely or jointly have provided at least one third of the issued share capital may claim in court from a usufructuary or pledgee of a share who has the right to vote that he passes the voting rights related to that share to the holder of the share if that usufructuary or pledgee through his conduct harms or has harmed the interests of the Corporation in such a way that a continuation of his right to vote reasonably cannot be tolerated any longer.
- 2. A copy of the writ of summons must, without delay, be officially served by the plaintiffs on the holder of the share if the latter is not also a plaintiff. Article 2:336, paragraphs 2, 3 and 4, and Article 2:339 paragraph 2 shall apply and Articles 2:337 and 2:338, paragraph 1, shall apply accordingly, in the sense that in the situation meant in Article 2:338, paragraph 1 and 3, the usufructuary or pledgee is not able to pass his usufruct or pledge*) to someone else.
- 3. If the legal claim for the passage of the voting rights is awarded, this passage is effectuated by and as soon as the involved judgment becomes final and binding.

*) In the sense that the debt-claim for which the pledge serves as security cannot be transferred (assigned) to someone else. It is not possible to transfer a pledge independently, disconnected from the secured debt-claim.

Article 2:342a [repealed on 01-01-1984]

Article 2:343 Forced take over (buy-up) of shares
- 1. A shareholder who, as a result of the conduct of one or more of his co-shareholders, is harmed in such a way in his rights or interests that a continuation of his shareholdership reasonably no longer can be expected of him, may file a legal claim in court against his co-shareholders for his withdrawal, entailing that these co-shareholders must buy up his shares in accordance with Article 2:343a, paragraph 1, 2 and 3. A legal claim for a withdrawal can be filed also against the Corporation on the basis of the conduct of one or more co-shareholders or of the Corporation itself. Such a legal claim against the Corporation, however, cannot be awarded to the extent that Article 2:98 or 2:207 precludes an acquisition of shares by the Corporation, on the understanding, though, that no account is taken of the requirement of an authorization as meant in Article 2:98, paragraph 4, or of a similar provision in the articles of incorporation, nor of an amendment of the articles of incorporation to the detriment of the plaintiff after the legal claim had been brought to court. When the legal claim is awarded, Article 2:207, paragraph 3, shall not apply.
- 2. Articles 2:336, paragraph 3 and 5, 2:337, 2:338 paragraph 1 and 3, 2:339 and 2:340, paragraph 1, 2 and 3 apply or apply accordingly.
- 3. Where the legal claim has been filed against a shareholder, he may call another shareholder or the Corporation to court if he is of the opinion that the legal claim should have been filed solely against that shareholder or the Corporation. The summons to appear in court must be made at the latest on the day on which the statement of defence has to be filed with the court.
- 4. In determining the price of the shares the court may, if requested, apply a fair (reasonable) increase in connection with the conduct of the defendant or of others than the defendant, if it is plausible that this conduct has resulted in a decrease of the value of the shares which are to be transferred, and this decrease should not or not entirely remain for account of the plaintiff.
- 5. When the legal claim for a withdrawal is awarded, the judgment shall contain also an order to the plaintiff to transfer the relevant shares, if need be after application of Article 2:343a, paragraph 5, to the defendants.
- 6. The court may stay proceedings and its decision on the legal claim for a period to be determined by it, if it has appeared during the proceedings that the Corporation or one or more co-shareholders are willing to take measures which as much as possible will undo or limit the damage suffered by the shareholder.

Article 2:343a Legal effects of a judgement awarding the claim for a forced take over (buy-up)
- 1. Within two weeks after a copy of the judgment in which the price of the shares is fixed, has been served officially on the defendants, each of them is obliged to take over (buy up) the number of shares determined by the court against simultaneous payment of the fixed price, except for what is provided in paragraph 2, while the plaintiff is obliged to transfer (deliver) these shares to the defendants. Where the judgment was not been declared enforceable immediately, an official service of a copy thereof shall only have the legal effect mentioned in the first sentence if such service is done after the judgment has been declared enforceable still or if the judgement has become final and binding. Shareholders who have joined the defendants as a party in the legal proceedings and who have expressed, when doing so, that they wish to be placed in the same position as the defendants are equated for this purpose with the defendants.
- 2. If the shareholder, who wants to alienate one or more shares, has to offer these shares first to his co-shareholders or other persons pursuant to Article 2:195 or to an arrangement to this end in the articles of incorporation, then the Corporation shall, immediately after a copy of the judgment has been served on it, offer these shares in writing in the name of the plaintiff to the shareholders or other persons, as much as possible with corresponding application of the law or of the arrangement in the articles of incorporation, and the Corporation shall also notify these co-shareholders and other persons of the fixed price of the relevant shares. The co-shareholders and other persons may accept the offer within one month after it was sent to them by a written notification to the Corporation. Within one week after the expiration of the before meant period, the Corporation shall notify the plaintiff and defendants whether, and if so, how many shares have been accepted and to whom these are allocated. After receipt of such notification, the plaintiff is obliged to deliver (transfer) the relevant shares immediately to the co-shareholders or the other persons who accepted the offer, against simultaneous payment of the price. Paragraph 1, second sentence, applies accordingly.
- 3. Where, in the situation as meant in paragraph 2, no shares have been accepted or less shares have been accepted than there were offered, or the fixed price has not been paid within two weeks after the plaintiff, who wanted to proceed to a simultaneous transfer, received the notification of the Corporation regarding the allocation of shares, the provisions of paragraph 1 shall apply in respect of the shares, the remaining shares or the shares for which no timely payment was received, on the understanding that the acceptance by the defendants of the shares which were not taken over [by the other shareholders or other persons] occurs as much as possible in proportion to the numbers of shares determined for each of the defendants in conformity with paragraph 1.
- 4. Where the plaintiff is in default of transferring (delivering) his shares, the Corporation transfers (delivers) these shares in his name against simultaneous payment by the persons acquiring these shares.
- 5. Where one or more defendants are in default of taking delivery of the shares against simultaneous payment of the fixed price, the other defendants must, within two weeks after such default has been established, take delivery of the involved shares against simultaneous payment of the price, all as much as possible in proportion to the number of shares determined for each of them in conformity with paragraph 1.
- 6. When a defendant is a shareholder for administrative purposes only, the holders of depository receipts are liable, next and in addition to that defendant, for what is indebted under the present Article, each of them as much as possible in proportion to the value of his holding of depository receipts. Where one or more of these holders of depository receipts are in default, the other holders of depository receipts are obliged to perform that missing part, each of them as much as possible in proportion to the value of his holding of depository receipts. The first and second sentence only applies to holders of depository receipts who have been called in time to the proceedings by the plaintiff. If necessary, the defendant shall provide the plaintiff with the information required to this end.
- 7. Upon the request of any involved party, the court that has awarded the legal claim in first instance or on appeal shall decide on any dispute relating to the implementation (performance) of the transfer or payment. No appeal or other remedy is available against such court decision.

Article 2:343b Legal effects then the judgement is declared void afterwards
In the event that the judgement is declared invalid (void) as meant in Article 2:343a, paragraph 1, Article 2:341a shall apply accordingly.

Article 2:343c Fixing a price by the court on the basis of a agreement between parties
- 1. When there is an agreement between a shareholder and one or more of his co-shareholders or the Corporation, indicating that the shareholder shall transfer his shares against simultaneous payment of a price which still has to be assessed, they may request the court meant in Article 2:336, paragraph 2, by means of a joint petition, to fix the price of the relevant shares. Such a request can be made also by one of the parties, provided that the other party in his counter-plea declares that he has no objections against the request.
- 2. Parties may request the court, when it appoints an expert or experts, to give certain instructions on the valuation method which is to be observed, the date relevant for the valuation and other circumstances that have to be taken into account at the valuation. As far as parties are not unanimous, the court shall decide in accordance with reasonableness and fairness.
- 3. The proceedings are pursued as application proceedings, to which Articles 2:343, paragraph 2, and 2:343a shall apply accordingly as much as possible.
- 4. If the parties have made clear in the petition or in conformity with paragraph 1, second sentence, that they would like to obtain a report of an expert which, between them, shall have the effect of a settlement agreement, then the statutory provisions for a preliminary expert report shall be applicable accordingly as much as possible. A party may only invoke Article 7:904, paragraph 2, during a period of four weeks as of the day on which the Registry of the court has sent the preliminary expert report on the basis of Article 205, paragraph 1, of the Code of Civil Procedure, to that party. In the application of Article 7:904, the court meant in Article 2:336, paragraph 3, shall have jurisdiction. That same court shall decide, upon the request of one of the parties, on any dispute relating to the implementation (performance) of the transfer or payment.
- 5. No appeal or other remedy is available against a decision of the court as meant in the present Article.

Section 2.8.2 The right of inquiry

Article 2:344 Application of the statutory provisions of the present Section
The provisions of the present Section (Section 2.8.2) shall apply to:
a. Cooperatives ('coöperaties'), Mutual Insurance Societies ('onderlinge waarborgmaatschappijen'), Open Corporations*) ('naamloze vennootschappen') and Closed Corporations**) ('besloten vennootschappen');
b. Foundations ('stichtingen') and Associations ('verenigingen') with full legal capacity that maintain an enterprise for which, under the law, a Works Council must be established.

*) An Open Corporation ('naamloze vennootschap') is the equivalent of a public limited liability company under English law.
**) A Closed Corporation ('besloten vennootschap') is the equivalent of a private company with limited liability under English law.

Article 2:345 Request for an investigation into the policy and affairs of a legal person
- 1. Upon a written request of those who are entitled to make such a request by virtue of Articles 2:346 and 2:347, the Enterprise Chamber ('ondernemingskamer') of the Amsterdam Court of Appeal may appoint one or more persons to conduct an investigation into the policy and the state of affairs of a legal person, either in full or with respect to some part thereof or to a certain period. The policy and state of affairs of a legal person include the policy and state of affairs of a limited partnership (commanditaire vennootschap) or a general partnership (vennootschap onder firma) of which a legal person is a fully liable partner.
- 2. The Advocate-General at the Amsterdam Court of Appeal may, for reasons of public interest, make a request for the conduct of an investigation as meant in paragraph 1. He may, in preparation of such request, charge one or more experts to gather information on the policy and state of affairs of the legal person. The legal person is obliged to provide the requested information and to allow, upon request, the experts to inspect its books and records.

Article 2:346 Right to file a request for an investigation
The following persons are entitled to file a request as referred to in Article 2:345:
a. if it concerns an Association ('vereniging'), a Cooperative ('coöperatie') or a Mutual Insurance Society ('onderlinge waarborgmaatschappij'): the members of the legal person, in number at least 300, or at least one tenth of the total number of members or at least representing one tenth of the votes that may be cast at the General Meeting;
b. if it concerns an Open Corporation ('naamloze vennootschap') or a Closed Corporation ('besloten vennootschap'): one or more holders of shares or depository receipts of shares, who solely or jointly represent at least one tenth of the issued share capital or who are solely or jointly entitled to an amount of shares or depository receipts of shares to a nominal value of € 225,000 or of a lower sum specified for this purpose in the articles of incorporation;
c. those to whom such right has been granted in the articles of incorporation or in an agreement with the legal person.

Article 2:347 Right of a labor union to file a request for an investigation
Entitled to file a request as referred to in Article 2:345 is furthermore an association of employees (labor union) with members amongst those who are working in the enterprise of th legal person and which has had full legal capacity for at least two years, provided that its object (purpose) under its articles of incorporation is to look after the interests of its members as employees and that it is active in such capacity in the economic sector or in the enterprise.

Article 2:348 Informing a supervisory authority
If the legal person, due to the nature of the business that it conducts, is subject to the supervision of the Dutch Central Bank ('De Nederlandsche Bank NV') or the Netherlands Authority for the Financial Markets ('Stichting Autoriteit Financiële Markten'), then the clerk of the court shall send a copy of the request for an investigation to the supervisory authority.

Article 2:349 Inadmissibility of the request of the applicants or the Advocate-General
- 1. The request for an investigation made by the applicants or the Advocate-General is not admissible if they do not show that they have informed the Board of Directors and the Supervisory Board of the involved legal person in advance in writing of their objections against the policy or the state of affairs and they do not show that since that moment such a period of time has passed that the legal person reasonably has had the opportunity to examine these objections and to take the proper measures in respect thereof. The previous sentence does not apply when the request is made by a legal person. In that event the Supervisory Board or the Board of Directors, respectively, and the Works Council shall be informed as soon as possible about the intention to lodge a request or about the lodging of the request, respectively. For the purpose of paragraph 1, a supervisory body instituted by or pursuant to the articles of incorporation of the legal person is equated with the Supervisory Board.
- 2. The request of an association of employees (labor union) is inadmissible as well when that association has not granted the Works Council related to an enterprise which is maintained by the legal person, either independently or as a fully liable partner, an earlier opportunity to express its views on the matter in writing. The Advocate-General shall report in his request whether he has given the Works Council the opportunity to express its views on the matter.

Article 2:349a Urgent matters and provisional measures
- 1. The Enterprise Chamber ('ondernemingskamer') shall take the request into consideration with the utmost urgency. The applicants and the legal person appear either by advocate (solicitor) or in person assisted by their advocates (solicitors). Before taking a decision, the Enterprise Chamber may of its own motion (ex officio) hear witnesses and experts.
- 2. If, in connection with the situation of the legal person or in the interest of the investigation, immediate measures are required, the Enterprise Chamber may, upon the request of the applicants who have filed the request meant in Article 2:345, order at any stage of the legal proceedings provisional measures effective for at the most the duration of the proceedings.

Article 2:350 Well-founded reasons; damages and costs of investigation
- 1. The Enterprise Chamber ('ondernemingskamer'') shall award the request only if there appear to be well-founded reasons to doubt that the policy or state of affairs is or has been correct.
- 2. When the Enterprise Chamber ('ondernemingskamer') rejects the request and decides at the same time that, in its opinion, this request was not based on well-founded reasons, then the legal person may file a legal claim at the Enterprise Chamber ('ondernemingskamer') against the applicant or applicants for a compensation of the damage suffered as a result of the request. The domicile that the applicant has chosen for lodging his request will be regarded as his domicile for the legal claim which is filed against him.
- 3. If the request is awarded, then the Enterprise Chamber ('ondernemingskamer') shall set the amount of the maximum costs of investigation. Pending the investigation, the Enterprise Chamber ('ondernemingskamer') may, upon the request of the appointed persons, increase that amount, but only after the original applicants have been heard, that is to say, after they have been properly called to court to be heard. The Enterprise Chamber ('ondernemingskamer') shall set the remuneration of the persons it has appointed. The legal person has to pay the costs of investigation and the reasonable costs for the defence of the persons charged with the investigation on the assessment of liability, as far as these are made in reason in the conduct of the investigation or for making the report on the results of the investigation; in the event of a dispute the Enterprise Chamber ('ondernemingskamer') shall give a decision on it upon the request of one of the involved parties. The Enterprise Chamber ('ondernemingskamer') may decide that the legal person provides security for the payment of costs.
- 4. The Enterprise Chamber ('Ondernemingskamer') appoints, simultaneously with the persons charged with the investigation, a commissioner-judge. If a proper conduct of the investigations requires so, the commissioner-judge may, upon the request of the applicants of interested persons give directions on the way in which the investigation is to be conducted. The commissioner-judge shall not decide on such request than after he has given the persons charged with the investigation the opportunity to give their point of view about the request. The commissioner-judge may also give directions to the persons charged with the investigation upon their own request. The commissioner-judge shall not decide on such request than after he has given the legal person who has appeared in the proceedings the opportunity to give its point of view about the request. The commissioner-judge may also grant others the opportunity to give their point of view. No appeal in cassation is available against a decision of the commissioner-judge as meant in the present paragraph.

Article 2:351 Powers of the investigators; obligation of secrecy
- 1. The persons appointed by the Enterprise Chamber ('ondernemingskamer') shall be entitled to inspect the books, records and other data carriers of the legal person or partnership referred to in Article 2:345 paragraph 1, of which they become aware in the proper performance of their duties. The assets (property) of the legal person or partnership must be presented to them upon their request. The Directors and, if any, the Supervisory Directors and those who are employed by the legal person or partnership are obliged to provide, upon request, all information necessary for the investigation. The same obligation rests upon those who were Directors or Supervisory Directors of or employed by the legal person or partnership during the period under investigation.
- 2. If this is necessary for a proper fulfilment of their duties, the Enterprise Chamber ('ondernemingskamer') may authorise the appointed persons, upon their request, to inspect the books, records and other data carriers and to cause the presentation of the assets (property) of another legal person which is closely affiliated with the legal person or partnership to which the investigation relates. The provisions of the third and fourth sentence of paragraph 1 shall apply accordingly.
- 3. It is prohibited for the persons charged with the investigation to disclose information of which they have become aware during their investigation as far as this exceeds their assignment.
- 4. The persons charged with the investigation shall draw up a report of their findings. They shall provide the persons mentioned in the report the opportunity to make remarks about the essential findings that relate to themselves. It is prohibited for everyone to provide information about the content of the concept report or of parts thereof that have been presented to him in order to comply with what is provided in the previous sentence.
- 5. The persons charged with the investigation are not liable for damages resulting from the report or the outcome of the investigation, unless they have acted, in regard of their findings as laid down in the report or in regard of the investigation, deliberately inappropriate or with gross misunderstanding of what a proper performance of duties entails.

Article 2:352 Additional orders of the presiding judge of the Enterprise Chamber
- 1. When a person charged with the investigation wants to inspect books, records and other data carriers or requests the presentation of assets (property) as regulated in the previous Article and this is refused, then the commissioner-judge meant in Article 2:250, paragraph 4, may, upon the request of this person, give such orders as required under the circumstances
- 2. Such orders may include an instruction to the police to provide, where necessary, assistance and to enter a house (dwelling) when the books, records and other data carriers or assets are located there or where these items can be reached only through that house (dwelling). The house (dwelling) may be entered only against the will of the occupant after presentation of the order of the commissioner-judge of the Enterprise Chamber ('ondernemingskamer').

Article 2:352a Hearing of witnesses
Persons charged with the investigation may request the Enterprise Chamber ('ondernemingskamer') to hear one or more persons as witnesses. Such request mentions the names and addresses of the persons to be heard and the facts and circumstances in respect of which they are to be heard. The investigators are entitled to attend the hearing and to question the witnesses.

Article 2:353 Report of the investigation
- 1. The report of the outcome of the investigation is deposited at the clerks office of the Amsterdam Court of Appeal. From the report must appear whether the provisions of Article 2:351, paragraph 4, second sentence, are met.
- 2. The Advocate-General at the Amsterdam Court of Appeal, the legal person and the applicants and their advocates (solicitors registered at the Bar) shall receive a copy of this report. In the situation referred to in Article 2:348, the Dutch Central Bank ('De Nederlandsche Bank NV') or the Netherlands Authority for the Financial Markets ('Stichting Autoriteit Financiële Markten') shall also receive a copy of the report. The Enterprise Chamber ('ondernemingskamer') may decide that the report is made available for inspection as well by other persons to be pointed out by the Enterprise Chamber ('ondernemingskamer') or by anyone.
- 3. It is prohibited for others than the legal person to inform third persons of the content of the report as far as it is not available for inspection by anyone, unless they have been authorised to do so by the Enterprise Chamber ('ondernemingskamer') upon their request. Yet, an association of employees (labor union) is entitled, without such authorisation, to provide information from the report to the Works Council related to the enterprise of the legal person.
- 4. As soon as possible after the report has been deposited at the Registry of the Amsterdam Court of Appeal, the clerk of that court shall notify the applicants and legal person thereof; where the Enterprise Chamber ('ondernemingskamer') orders so, the clerk of that court shall also ensure publication in the Dutch Government Gazette (Staatscourant) of the fact that the report has been deposited and, where appropriate, of the authorisation of the Enterprise Chamber ('ondernemingskamer') referred to in paragraph 2.

Article 2:354 Recovery of costs
After the Enterprise Chamber ('ondernemingskamer') has taken knowledge of the report of the investigation, it may decide, upon the request of the legal person, that this legal person may recover the costs of investigation in full or in part from the applicants if the report shows that the request was not made on well-founded grounds, or from a Director, Supervisory Director or another person employed by the legal person if the report shows that he is responsible for a wrong policy or an unsatisfactory state of affairs of the of the legal person. The last sentence of paragraph 2 of Article 2:350 shall apply.

Article 2:355 Mismanagement of affairs; request for additional measures
- 1. If the report indicates that there has been a mismanagement of affairs, then the Enterprise Chamber ('ondernemingskamer') may order that one or more of the measures meant in the following Article (Article 2:356) are to be taken, depending on the question which of these measures it regards appropriate in view of the outcome of the investigation; such order may be rendered upon the request of the original applicants and, if the report is available for inspection by others, upon the request of those others who meet the requirements of Articles 2:346 or 2:347, or upon a request of the Advocate-General lodged for reasons of public interest.
- 2. The request meant in the previous paragraph must be made within two months after the report of the investigation has been deposited at the Registry of the Amsterdam Court of Appeal.
- 3. Articles 2:348 and 2:349a shall apply accordingly.
- 4. In the case referred to in Article 2:348, the Enterprise Chamber ('ondernemingskamer') shall only render the order after it has granted the Dutch Central Bank ('De Nederlandsche Bank NV') or the Netherlands Authority for the Financial Markets ('Stichting Autoriteit Financiële Markten') the opportunity to be heard on the request.
- 5. The Enterprise Chamber ('ondernemingskamer') may stay its decision (order) for a period to be set by it if the legal person promises to take certain measures that will put an end to the mismanagement of affairs or that will undo or limit the consequences of that mismanagement as much as possible.

Article 2:356 Measures that may be ordered by the Enterprise Chamber
The measures mentioned in the previous Article (Article 2:355), are:
a. a suspension or annulment (nullification) of a resolution (decision) of the Directors, Supervisory Directors, the General Meeting of shareholders or any other body of the legal person;
b. a suspension or dismissal of one or more Directors or Supervisory Directors;
c. a temporary appointment of one or more Directors or Supervisory Directors;
d. a temporary derogation from those provisions in the articles of incorporation that are designated by the Enterprise Chamber ('ondernemingskamer') for this purpose;
e. a temporary transfer of shares for administrative purposes only;
f. a dissolution of the legal person.

Article 2:357 Further specification of (provisional) measures
- 1. The Enterprise Chamber ('ondernemingskamer') shall set the period during which the temporary measures it has ordered shall be effective; it may shorten or extend this period upon the request of the applicants referred to in Article 2:355, the legal person or the Advocate-General.
- 2. The Enterprise Chamber ('ondernemingskamer') shall, if necessary, specify the effects of the measures it has ordered.
- 3. A measure ordered by the Enterprise Chamber ('ondernemingskamer') cannot be made undone (reversed) by the legal person; a resolution passed to this end, is null and void.
- 4. Where the Enterprise Chamber ('ondernemingskamer') has appointed a temporary Director, Supervisory Director or an administrator of shares, it may grant this person a remuneration to be paid by the legal person.
- 5. The Enterprise Chamber ('ondernemingskamer') may instruct such persons to report regularly to the Enterprise Chamber ('ondernemingskamer').
- 6. The Enterprise Chamber ('ondernemingskamer') may decide that the legal person pays the reasonable costs, made in reason, for the defence of the Director, Supervisory Director or administrator of shares in regard of the assessment of his liability for an improper performance of duties during his temporary appointment.
- 7. The Enterprise Chamber ('ondernemingskamer') does not order the dissolution of the legal person when such dissolution is not in line with the interests of the members or shareholders of that legal person, the interests of those who are employed by that legal persons or the public interest.

Article 2:358 Publication of the orders of the Enterprise Chamber
- 1. The Enterprise Chamber ('ondernemingskamer') may order the provisional (immediate) enforcement of the measures mentioned in Article 2:356 under (a) up to and including (e).
- 2. The clerk of the Enterprise Chamber ('ondernemingskamer') ensures that a copy of the orders of the Enterprise Chamber ('ondernemingskamer') shall be deposited at the commercial register. Orders of the Enterprise Chamber ('ondernemingskamer') that are not made provisionally (immediately) enforceable, shall be deposited as soon as they have become final and binding.
- 3. In the situation referred to in Article 2:348 the Dutch Central Bank ('De Nederlandsche Bank NV') or the Netherlands Authority for the Financial Markets ('Stichting Autoriteit Financiële Markten'), respectively, shall receive a copy of the orders of the Enterprise Chamber ('ondernemingskamer') from the clerk of that court.

Article 2:359 Appeal in cassation
- 1. Besides the persons referred to in Article 426, first paragraph, of the Code of Civil Procedure, the legal person is entitled to bring an appeal in cassation against the orders of the Enterprise Chamber ('ondernemingskamer') rendered under the present Section (Section 2.8.2), irrespective of whether the legal person has appeared before the Enterprise Chamber ('ondernemingskamer').
- 2. If an order of the Enterprise Chamber ('ondernemingskamer') in which a person has been charged with an investigation or in which he is appointed as Director, Supervisory Director or administrator of shares, looses its legal validity because it is declared void, then the compensation or remuneration granted by the Enterprise Chamber ('ondernemingskamer') to that person, is deemed to have never been indebted.

Section 2.8.3 The public bid

Article 2:359a Application of the statutory provisions of Section 2.8.3
- 1. The present Section (Section 2.8.4) applies to a Corporation*) ('naamloze of beslote vennootschap') of which the shares are admitted to a regulated market as meant in Article 1:1 of the Financial Supervision Act, unless it concerns an Investment Company ('beleggingsmaatschappij') or a company for collective investments in transferable securities, as referred to in that Article and the units of which are, at the holders' request, repurchased or redeemed, directly or indirectly, out of the assets of such Investment Company ('beleggingsmaatschappij')
- 2. For the purpose of the present Section (Section 2.8.3) a depository receipt issued for a share in collaboration with the Corporation is equated with a share, and a holder of such depository receipt is equated with a shareholder.

*) The statutory provisions of Section 2.8.3 apply when the Corporation is a so called offeree company (target company)

Article 2:359b Protected or unprotected Corporation (target company)
- 1. The articles of incorporation of a Corporation (target company) may provide that a public notification of the announcement of a public offer, as defined in Article 5:70 or 5:74 of the Financial Supervision Act, on shares issued by the Corporation, has the effect that:
a. until the result (outcome) at the close of the bid has been made public or the bid has lapsed, the Corporation (target company) may not perform any acts which could frustrate the success of the public bid, unless its General Meeting has given its approval prior to such act or that act concerns the search for an alternative public bid (from a ‘white knight’); the convening notice for such General Meeting shall be given no later than on the forty-second day prior to that meeting;
b. resolutions (decisions) of the Corporation (target company) adopted before the public notification of the announcement referred to in the preamble of the present paragraph, but not yet fully implemented then, need the approval of the General Meeting if that resolution (decisions) falls outside the normal course of business of the Corporation (target company) and the implementation of that resolution could frustrate the success of the public bid; the convening notice for such General Meeting shall be given no later than on the forty-second day prior to that meeting;
c. restrictions on transfer of shares, laid down in the articles of incorporation of the Corporation (target company) or agreed between the Corporation (target company) and its shareholders mutually or between shareholders mutually, have no effect against the offeror when shares are offered to him during the period prior to the acceptance of the public bid;
d. restrictions to exercise voting rights, laid down in the articles of incorporation of the Corporation (target company) or agreed between the Corporation (target company) and its shareholders mutually or between shareholders mutually, have no effect during or at the General Meeting where a resolution (decision) is taken on acts as meant under (a) or (b) of the present paragraph;
e. during or at the General Meeting each share shall represent one single vote as far as it concerns resolutions (decisions) regarding acts or other resolutions (decisions) meant under (a) or (b) of the present paragraph.
- 2. The articles of incorporation of the Corporation (target company) may provide that the holder of shares who, as a result of a public bid, represents at least 75% of the issued share capital of that Corporation, has the power to convene, at short notice after the period for the acceptance of the public bid has ended, a General Meeting at which any special rights granted under the articles of incorporation to shareholders in respect of resolutions (decisions) for the appointment or dismissal of a Director or Supervisory Director shall have no effect. The convening notice for such General Meeting shall be given no later than on the forty-second day prior to that meeting. During or at that General Meeting each share shall represent one single vote as far as it concerns resolutions (decisions) regarding the appointment or dismissal of Directors or Supervisory Directors, whereas restrictions to exercise voting rights, laid down in the articles of incorporation or agreed between the Corporation (target company) and its shareholders mutually or between shareholders mutually, have no effect.
- 3. A shareholder is entitled to a fair compensation for damage suffered as a result of the application of paragraph 1, under (c), (d) or (e), or of paragraph 2.
- 4. If an announcement is made of a public bid on a Corporation (target company) which applies paragraph 1 or 2 above, which public bid is released by a corporation or legal person that does not apply the same or a similar provision or provisions itself in accordance with national rules of law for the implementation of Article 9, paragraph 2 and 3 or Article 11 of Directive No. 2004/25/EC of the European Parliament and the Council of 21 April 2004 on takeover bids (OJ L 142), or which public bid is released by a subsidiary of such corporation of legal person, then the offeree Corporation (target company) may decide that what is applicable pursuant to paragraph 1 or paragraph 2 shall not apply in this specific case. Such resolution (decision) is subject to the approval of the General Meeting, which approval may not have been granted earlier than 18 months before the bid was announced.
- 5. The application of paragraph 1 or, respectively, paragraph 2, shall be reported to the Dutch financial supervisory authority (Autoriteit Financiële Markten). A report shall be made as well to supervisory authorities of other Member States of the European Union where the shares are admitted to a regulated market or where such admission is sought.
- 6. The Enterprise Chamber ('ondernemingskamer') of the Amsterdam Court of Appeal takes notice of all legal claims regarding the application of paragraphs 1 up to and including 4, filed by a shareholder, a holder of a depositary receipt issued for a share in collaboration with the Corporation (target company), a Director or a Supervisory Director.

Article 2:359c Forced transfer of shares (buy-out) after a public bid has been released
- 1. Someone who has released a public bid and who provides for its own account, as shareholder, at least 95% of the issued share capital of the offeree Corporation (target company) and represents at least 95% of the voting rights of the offeree Corporation (target company), may file a legal claim against the other shareholders for a forced transfer of their shares to him. The same applies if two or more group companies jointly provide this part of the issued share capital and jointly represent this part of the voting rights, and they jointly file a legal claim for a forces transfer of shares to the person who has made the public bid.
- 2. When there are different types (classes) of shares, then such legal claim can be filed only in respect of the type (class) of which the plaintiff or plaintiffs provide at least 95% of the issued share capital and represent at least 95% of the voting rights.
- 3. The legal claim must be filed within three months after the deadline set for acceptance of the bid.
- 4. The Enterprise Chamber ('ondernemingskamer') of the Amsterdam Court of Appeal shall decide in first instance on such legal claim. It is only possible to lodge an appeal in cassation against its decision.
- 5. If one or more defendants are in default of appearance, the court must of its own motion (ex officio) examine whether the plaintiff or plaintiffs meet the requirements of paragraph 1 or, respectively, paragraph 2.
- 6. If the court is of the opinion that paragraph 1 and 2 do not prevent the legal claim of being awarded, it will fix a fair price for the shares to be transferred on a day to be set by the court. If a public bid as referred to in Article 5:74 of the Financial Supervision Act has been released, the value of the counter performance offered in that bid is regarded as a fair price, provided that at least 90% of the shares to which that bid relates has been acquired. If a public bid as referred to in Article 5:70 of the Financial Supervision Act has been released, the value of the counter performance offered in that bid is regarded as a fair price. In derogation from the second or third sentence, the court may order that one or three experts shall report on the value of the shares to be transferred. The first three sentences of paragraph 3 of Article 2:350 and Articles 2:351 and 2:352 are applicable in such event. The price is fixed in money (in cash). As long and as far as the price has not been paid, it will be raised with an interest equal to the statutory interest, running from the day set by the court for fixing the price until the transfer of shares; distributions on shares declared payable in this period, are taken into account on the day of payment as a partial payment of the price.
- 7. When the court awards the legal claim, it shall order the transferee (acquiring party) to pay the fixed price plus interest to those to whom the shares belong or will belong against the simultaneous transfer (delivery) of the unencumbered entitlement to the shares. The court shall give a decision on the costs of proceedings as it regards appropriate. A defendant who has not defended himself cannot be ordered to pay the costs of proceedings.
- 8. When the court order for a forced transfer of shares has become final and binding, then the transferee (acquiring party) shall notify the holders of the shares to be transferred, of whom he knows the address in writing of the day and place of payment. He shall announce this information also in a national newspaper, unless he knows the addresses of all involved holders of the shares to be transferred.
- 9. The transferee (acquiring party) is always able to release himself from the obligations imposed on him pursuant to paragraph 7 and 8 by consigning to the court the fixed price plus interest for all shares not yet acquired by him, with mention of the rights of usufruct and pledges known to him and of seizures (attachments) known to him. As a result of such notification a seizure (attachment) shall pass over from the shares to the entitlement to payment. As a result of the consignation to the court the entitlement to the shares passes unencumbered to him, whereas the rights of usufruct and pledges on the shares pass over to the entitlement to payment. No right or claim against the Corporation can be derived from any share certificate or dividend warrant (dividend coupon) in respect of which distributions have been declared payable after the transfer. The transferee (acquiring party) shall at that moment give notice of the consignation and of the price for each share in the way described in paragraph 8.

Article 2:359d Forced take over (buy-up) of shares after a public bid has been released
- 1. Another shareholder may file a legal claim against someone who has released a public bid and who provides for its own account, as shareholder, at least 95% of the issued share capital of the offeree Corporation (target company) and represents at least 95% of the voting rights of the offeree Corporation (target company), in order to force him to take over the shares of that other shareholder. The same applies if two or more group companies jointly provide this part of the issued share capital and jointly represent this part of the voting rights, and one of them has released the public bid.
- 2. When there are different types (classes) of shares, then such legal claim may be filed in respect of the type (class) of which the person who has released a public bid provides at least 95% of the issued share capital and represents at least 95% of the voting rights, either solely or jointly with one or more group companies.
- 3. The legal claim must be filed within three months after the deadline set for acceptance of the bid.
- 4. The Enterprise Chamber ('ondernemingskamer') of the Amsterdam Court of Appeal shall decide in first instance on such legal claim. It is only possible to lodge an appeal in cassation against its decision.
- 5. If one or more defendants are in default of appearance, the court must of its own motion (ex officio) examine whether the defendant or defendants meet the requirements of paragraph 1 or, respectively, paragraph 2.
- 6. When the court order for a forced take over of the shares has become final and binding, then the transferee (acquiring party) shall notify the holders of the shares to be transferred in writing of the day and place of payment.
- 7. Article 2:359c, paragraph 6, 7 and 9 shall apply accordingly.