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Print articleMore Flexibility to Pass Shareholders Resolutions Outside a Meeting
October, 2012 - Pieter van den Brink
Not having to convene a shareholders meeting makes the decision-making process more easy for shareholders. Under the Act on simplification and flexibilisation of rules governing Dutch BV's (the "Flex BV Act") that entered into force on 1 October 2012, it has become easier to pass shareholders resolutions outside a meeting. If the articles of association contain a provision on passing shareholders resolutions outside a meeting that is based on the old legislation, we recommend to amend the articles to be able to achieve this flexibility.
Pursuant to the Flex BV Act the ability to pass resolutions without holding a meeting is no longer dependent on whether or not the articles of association allow passing such resolutions in such way. Under the Flex BV Act, shareholders resolutions may be passed without holding a meeting if the following conditions are met:
- the unanimity requirement for resolutions without holding a meeting ceases to apply but all persons with meeting rights should consent to this form of decision-making (electronically or otherwise);
- as the unanimity requirement no longer applies, resolutions may be passed in writing by the majority prescribed for the resolution in the articles of association; and
- the management board members and supervisory board members are given the opportunity to advise on the resolutions prior to the voting.
Before implementation of the Flex BV Act a shareholders resolution could only be passed if, amongst others, the shareholders would pass such resolution unanimously. Thus, if the articles of association contain a provision containing this unanimity requirement, this requirement will remain applicable although such condition is no longer a requirement under the Flex BV Act. We would therefore advise to check the articles of association. If the articles of association contain a provision in line with the old rules that applied, we would advise to bring them in line with the above and thus enable resolutions to be passed without holding a meeting in a more flexible way.
