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What role does a shareholders' agreement have in the formation of a bv?

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What is the role of a shareholders' agreement and why should you include it when setting up a bv? Read more about it here.

When forming a besloten vennootschap (bv), good cooperation between shareholders is crucial. In addition to the mandatory statutes, many entrepreneurs choose to draft a shareholders' agreement. But what is a shareholders' agreement, and why is it so important? In this article, we explain the role of this document and why it is a valuable addition when establising a bv.

What is a shareholders' agreement?

A shareholders' agreement is a legal document that sets out the agreements between the shareholders of a bv. It covers topics that do not or do not always have to be in the statutes, but are essential for good cooperation.

Important points often included in a shareholder agreement include:

Voting rights and decision-making.
Profit distribution and dividend policy.
Transfer and sale of shares.
Roles and responsibilities of shareholders.
Dispute resolution

The document is not mandatory, but is strongly recommended, especially if there are multiple shareholders.

Why is a shareholder agreement important?

A shareholder agreement provides clarity and prevents conflicts. The document helps establish agreements on matters that affect the cooperation and operation of the bv. Here are some key benefits:

Clarity about rights and obligations
With a shareholder agreement, the rights and duties of each shareholder are clearly established. This prevents misunderstandings and provides a clear basis if ambiguities arise.

Supplement to the statutes
The statutes are mandatory when establishing a bv, but often only contain the basic rules. A shareholders' agreement offers room for more specific agreements, such as how profits are distributed or how new shareholders are admitted.

Limiting risks in the event of disputes
Conflicts between shareholders can have major consequences for the bv. In the shareholder agreement you can, for example, stipulate how disputes will be resolved, such as through arbitration or mediation, to avoid legal proceedings.

Flexibility
A shareholders' agreement is easier to amend than the statutes. Agreements can be revised without a notary having to be involved.

What does a shareholders' agreement contain?

The content of a shareholders' agreement is tailored to the needs of the besloten vennootschap and its shareholders. Common topics include:

Capital and shares: How are shares distributed, and what rules apply to selling or transferring shares?
Profit distribution: How are profits distributed? Will dividends be paid annually, or will a portion remain in the bv?
Governance and decision-making: Who gets to make decisions, and how are votes distributed?
Contribution and involvement: What responsibilities and obligations do shareholders have, such as financial contribution or operational involvement?
Dispute resolution: How are disagreements or conflicts resolved?
Exit and death: What happens if a shareholder wants to leave or dies?

Is a shareholder agreement mandatory?

No, a shareholder agreement is not required by law. Nevertheless, it is strongly recommended, especially if there are multiple shareholders.

Shareholders’ agreement vs. statutes: what’s the difference?

Although both statutes and a shareholders' agreement contain agreements, there are important differences:

	Statutes	Shareholders’ agreement
Mandatory	Required for establishing the bv	Not required
Amendments	Through a notary, official document	More flexible, no notary needed
Content	General rules, legal foundation	Detailed agreements
Public accessibility	Accessible by third parties	Private between shareholders

The shareholder agreement thus offers more flexibility and privacy for agreements you don't want to make public.

How do you draft a shareholder agreement?

Drafting a shareholder agreement requires customization. The agreements must fit the specific situation of the bv and the shareholders. A good approach includes:

Inventory of requirements: What topics are important to all shareholders?
Alignment with the statutes: Make sure the agreement is in line with the statutes of the bv.
Legal advice: Have an expert review the document to avoid conflicts with existing legislation.
Signing: Make sure all shareholders sign the agreement.

Advice on drafting a shareholder agreement

At Belastingadviseur Eindhoven, we understand how important a well-drafted shareholders' agreement is. We offer support in drafting a shareholders' agreement and we advise on its content and alignment with the statutes.

Want to have a shareholder agreement drafted or existing agreements reviewed? Then contact us. Our advisers are ready to help you.