(NON)MANDATORY RULES INDUTCH CORPORA TE LAW to be valid 55 6.4 Proceduralrules Each year at least one general meeting has to be held (art. 2: 108/218 BW). At this meeting the annual account is to be adopted. An extraordinary general meeting is required if the assets of an NV have dropped below an amount of half of the issued share capital or less(art. 2: 108a BW). Both the executive and the supervisory board are entitled and obliged to convene a general meeting. The articles of association may also confer this competence on others(art. 2: 109/219 BW). If a stipulated general meeting is not convocated, any shareholder may request the president of the district court to be authorized to convene one(art. 2: 1 12/222 BW). Furthermore,one or more shareholders representing together more than one tenth of the issued share capital, or a lesser percentage stipulated in the articles, may request the president of the district court to be authorized to convene a specal general meeting, art 2: 110/220 BW. They must demonstrate a legitimate interest. 6 All holders of registered shares must get a 15 days notice of the meeting sent to their addresses. Holders of bearer shares and certificates must be given notice by placing an announcement in a nation-wide distributed newspaper. Voting by proxy is allowed, but a general indefinite proxy is held to be contrary to the separat ion of powers within the company 7 In order to establish a succesful system of proxy solicitation art 2: 1 19 BW provides for a record date. 58 All resolutions must be taken by a ma jority of the votes cast, unless the articles require a qualified majority. This also applies to a resolution to alterate the articles. If the voting conceming the election of persons comes to a drw, the decision is made by a drawing of lots. When other votings result in a draw, the articles may confer the decision to a third party(art. 2: 120/230 BW). This might be the executive or supervisory board, the chairman of the general meeting or the company sextema accountant. It is disputed whether a shareholder in that capacity might be such a third party, since that would be contrary to the principle of majority voting% Unless the company has certified its shares, the articles may provide for a written procedr instead of a meeting In that case, unanimity is required (art. 2: 128/238 BW). Even in case of a written procedure, the directors have a consultative vote(art. 2: 117/227)60 There are no statutory provisions on the meeting of the executive and supervisory board. The executive and the supervisory board are collectively VAN DEN INGH, De verplichting tot ovemame van niet vrij overdraaghare aandelen, Weekblad voor Privaatrecht Notariaat en Registratie 1989, p 137 See DUMOULIN, Besluitvoming in rechtspersonen, uitgave vanwege het Instituut voor Ondernemingsrecht deel 31, Deventer 1999, p. 125 ff 57 ASSER-MAELJER, O.C. nr 280. 58. ASSER-MAEIJER, o.C. nr. 282a. See further WINTER, Stemmen op afstand via het Communicatickanaal Aandee houders, in: Corporate Governance voor junsten, uitgave vanwege het Instituutvoor Ondememingsrechtdeel 30, Deventer 1998, P 81ff. ASSER-MAELJER, oC, nr 275 Cf Hoge Raad 10 March 1995, Nederlandse risprudentie 1995, 595(Janssen Pers)(NON) MANDATORY RULES IN DUTCH CORPORATE LAW 13 to be valid.55 6.4 Procedural rules Each year at least one general meeting has to be held (art. 2:108/218 BW). At this meeting the annual account is to be adopted. An extraordinary general meeting is required if the assets of an NV have dropped below an amount of half of the issued share capital or less (art. 2:108a BW). Both the executive and the supervisory board are entitled and obliged to convene a general meeting. The articles of association may also confer this competence on others (art. 2:109/219 BW). If a stipulated general meeting is not convocated, any shareholder may request the president of the district court to be authorized to convene one (art. 2:112/222 BW). Furthermore, one or more shareholders representing together more than one tenth of the issued share capital, or a lesser percentage stipulated in the articles, may request the president of the district court to be authorized to convene a special general meeting, art. 2:110/220 BW. They must demonstrate a legitimate interest.56 All holders of registered shares must get a 15 days notice of the meeting sent to their addresses. Holders of bearer shares and certificates must be given notice by placing an announcement in a nation-wide distributed newspaper. Voting by proxy is allowed, but a general indefinite proxy is held to be contrary to the separation of powers within the company.57 In order to establish a succesful system of proxy solicitation art 2:119 BW provides for a record date.58 All resolutions must be taken by a majority of the votes cast, unless the articles require a qualified majority. This also applies to a resolution to alterate the articles. If the voting concerning the election of persons comes to a draw, the decision is made by a drawing of lots. When other votings result in a draw, the articles may confer the decision to a third party (art. 2:120/230 BW). This might be the executive or supervisory board, the chairman of the general meeting or the company s external accountant. It is disputed whether a shareholder in that capacity might be such a third party, since that would be contrary to the principle of majority voting.59 Unless the company has certified its shares, the articles may provide for a written procedure instead of a meeting. In that case, unanimity is required (art. 2:128/238 BW). Even in case of a written procedure, the directors have a consultative vote (art. 2:117/227).60 There are no statutory provisions on the meeting of the executive a nd supervisory board. The executive and the supervisory board are collectively 55. VAN DEN INGH, De verplichting tot overname van niet vrij overdraagbare aandelen, Weekblad voor Privaatrecht, Notariaat en Registratie 1989, p. 137. 56. See DUMOULIN, Besluitvorming in rechtspersonen, uitgave vanwege het Instituut voor Ondernemingsrecht deel 31, Deventer 1999, p. 125 ff. 57. ASSER-MAEIJER, o.c., nr. 280. 58. ASSER-MAEIJER, o.c. nr. 282a. See further WINTER, Stemmen op afstand via het Communicatiekanaal Aandeelhouders, in: Corporate Governance voor juristen, uitgave vanwege het Instituut voor Ondernemingsrecht deel 30, Deventer 1998, p. 81 ff. 59. ASSER-MAEIJER, o.c., nr. 275. 60. Cf. Hoge Raad 10 March 1995, Nederlandse Jurisprudentie1995, 595 (Janssen Pers)