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In an earlier blog, I wrote about the importance of customization when drafting a shareholders' agreement. Often, the difference with the articles of association of a company is also discussed. In this blog, I outline some important differences between the articles of association and a shareholders' agreement.
When establishing a B.V. or N.V., the articles of association are included in the deed of incorporation. This is a legal requirement. The articles of association contain the main rules within the company. These rules are often generally described. Drafting a shareholders’ agreement is not mandatory. Shareholders can choose to draft a shareholders’ agreement themselves and are free to lay down specific, concrete arrangements.
The articles of association of a company are registered in the Trade Register of the Chamber of Commerce. As a result, the articles of association are public and can be requested by anyone. Therefore, articles of association are not suitable for recording contractual arrangements that are intended solely for the shareholders. A shareholders’ agreement is suitable for recording these arrangements because it is not public.
The statutory provisions apply at all times and to every shareholder and director of the company. A shareholders’ agreement only applies to the parties who have signed the agreement. Shareholders who join the company later are therefore not automatically bound by the arrangements in the shareholders’ agreement.
Amending the articles of association requires a notarial deed, whereas this is not the case for a shareholders’ agreement. Amending the shareholders’ agreement only requires the consent of all parties.
Do you need advice on (drafting) a shareholders’ agreement? Please contact Jarno de Graaf, Corporate Law Attorney, or one of the specialists from the Ondernemingsrecht team.
Haven’t read the blog ‘The Importance of Customization in a Shareholders’ Agreement’? Click here.
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