MEINEMA In three judgments the Supreme Court has acknowledged the validity of voting agreements in principle. 22 The Supreme Court held that since a voting right is a right given to a shareholder to serve his own interest in the company, he is free to commit himself as to the exercise of his voting right, provided that this does not lead to socially improper consequences 3 The mere fact that the agreement may imply that a vote cast by a shareholder may differ from his actual intention does not make the agreement improper. A voting greement between a shareholderand a third party is held to be valid in principle as well In the literature certain categories of improper agreements are identified. Most authors regard a voting agreement by which a shareholder commits himself to vote according to the instructions of the executive or supervisory board null and void No more accepted are voting agreements with a consideration in cash or in kind.25 An indefinite contract with a general instruction cause is considered to be improper as well. 26 A voting agreement is held to be contrary to public policy and morality when its a im or consequence is to evade the law.27 Since case law is scarce, a great deal of uncerta nty as to the validity of shareholders agreements in concrete circumstances rem ains A valid shareholders agreement is not necessarily upheld in all circumstances. If the fulfilment of the obligation resulting from a voting agreement would be contrary to reasonableness and faimess, the shareholder cannot be held to vote in onfomm ity with the agreement. 8 In the Coster case, three of the four shareholders of a private com pany had an agreement to meet and vote prior to every general meeting. where they all would vote in conform ity with the ma jority view of the pre-meeting29 The issue at stake was the company almost fulfilling the requirements of a arge company, which meant they would have to institute an independent supervisory board Two out of three shareholders in the pre-meeting tried to avoid that the equity threshold would be passed and decided a super dividend should be declared In the subsequent general meeting Coster, the third shareholder, refused to vote in Hoge Raad 30 June 1944, Nederlandse Juriypnadentie 1944, 465(Wennex, Hoge Raad 13 November 1959, Nedertand se Jurispnadentie 1960, 472(Dstilleerderij Melchers), Hoge Raad 19 February 1960, Nederlandse Jurisprudentie 1960, 473(Auro Hoge Raad 30 June 1944, Nederlandse Jurisprudentie 1944, 465 E.g. WAAIJER Aandeelhoudersovereenkomsten, Deventer 1996, p. 14. MOHR, Spijkers Ondenemingsrecht op de breukliin van praktik en wetenschap, oratie, Amhem 1993, p. 16. More lenient BRENNINKMEIJER, Stemovereenkomsten van aandeehouders, Deventer 1973, p. 152 and DE KLUIVER, Jont ventures en stemovereenkomsten. Een rechtsvergelijkend perspectief, in Joint Ventures, Ars Equ 1995, p. 433 ASSER-MAEUJER, o.C. nr. 288. VAN SCHILFGAARDE. o.c. nr. 67. PITLO-RAALMAKERS o.c. nr 5.94 Cf Hand boek, o c, nr. 217.. ASSER-MAEDER, o.c., nr. 289 Rechtbank Alkmaar 15 December 1976, Nederlandse urisprzdentie 1978, 319 30 See supra paragraph 2MEINEMA 8 agreements. Thus, the notions of public policy and morality come into play. In three judgments the Supreme Court has acknowledged the validity of voting agreements in principle.22 The Supreme Court held that since a voting right is a right given to a shareholder to serve his own interest in the company, he is free to commit himself as to the exercise of his voting right, provided that this does not lead to socially improper consequences . 23 The mere fact that the agreement may imply that a vote cast by a shareholder may differ from his actual intention does not make the agreement improper. A voting agreement between a shareholder and a third party is held to be valid in principle as well. In the literature certain categories of improper agreements are identified. Most authors regard a voting agreement by which a shareholder commits himself to vote according to the instructions of the executive or supervisory board null and void.24 No more accepted are voting agreements with a consideration in cash or in kind.25 An indefinite contract with a general instruction clause is considered to be improper as well.26 A voting agreement is held to be contrary to public policy and morality when its aim or consequence is to evade the law.27 Since case law is scarce, a great deal of uncertainty as to the validity of shareholders agreements in concrete circumstances remains. A valid shareholders agreement is not necessarily upheld in all circumstances. If the fulfilment of the obligation resulting from a voting agreement would be contrary to reasonableness and fairness, the shareholder cannot be held to vote in conformity with the agreement.28 In the Coster case, three of the four shareholders of a private company had an agreement to meet and vote prior to every general meeting, where they all would vote in conformity with the majority view of the pre-meeting.29 The issue at stake was the company almost fulfilling the requirements of a large company , which meant they would have to institute an independent supervisory board.30 Two out of three shareholders in the pre-meeting tried to avoid that the equity threshold would be passed and decided a super dividend should be declared. In the subsequent general meeting Coster, the third shareholder, refused to vote in 22. Hoge Raad 30 June 1944, Nederlandse Jurisprudentie 1944, 465 (Wennex), Hoge Raad 13 November 1959, Nederlandse Jurisprudentie 1960, 472 (Distilleerderij Melchers), Hoge Raad 19 February 1960, Nederlandse Jurisprudentie1960, 473 (Aurora). 23. Hoge Raad 30 June 1944, Nederlandse Jurisprudentie 1944, 465. 24. E.g. WAAIJER, Aandeelhoudersovereenkomsten, Deventer 1996, p. 14. MOHR, Spijkers. Ondernemingsrecht op de breuklijn van praktijk en wetenschap, oratie, Arnhem 1993, p. 16. More lenient BRENNINKMEIJER, Stemovereenkomsten van aandeelhouders, Deventer 1973, p. 152 and DE KLUIVER, Joint ventures en stemovereenkomsten. Een rechtsvergelijkend perspectief, in Joint Ventures, Ars Aequi 1995, p. 433. 25. ASSER-MAEIJER, o.c., nr. 288. 26. VAN SCHILFGAARDE, o.c.,nr. 67. 27. PITLO-RAAIJMAKERS, o.c., nr. 5.94. 28. Cf. Handboek, o.c., nr. 217.1. ASSER-MAEIJER, o.c., nr. 289. 29. Rechtbank Alkmaar 15 December 1976, Nederlandse Jurisprudentie1978, 319. 30. See supra paragraph 2