(NON)MANDATORY RULES INDUTCH CORPORA TE LAW favour of the decaration of the dividend. He sought prelim inary relief by asking the court to prohibit such a resolution to be taken and to prohibit the other shareholders to hold him to the a greement The court held that since the a im of the distribution was to evade mandatory corpora te law, the pre-meeting resolution was contrary to mandatory law and morality and as a consequence null and void. According to the court, this implied that Coster could not reasonably be held to vote in confomity Reversely, shareholder agreements may affect corporate decision-making. 31 When establishing the valid ity of the voting agreement, the Supreme Court made a distinction between the commitment to the agreement and the exercised vote. It considered a vote to be valid even if it is in breach of the contract 32 Nevertheless. in recent case law the Court held that acting in breach of a shareholders agreement may lead to liability in tort 33 In the literature, it is contended that voting contrary b a shareholders agreement may cause a com pany s resolution to be in breach of reasonableness and fa 34 Thus, a distinction is made between agreements with ll shareholders partcipating and other agreements. Voting contrary to a shareholders agreement may also imply mismanagement.35 Freedom to complete or modify statutory rules-examples 6.1 Shareholders contributions of personal services or financing Art.2:81/19236 BW states that no additional obligations may be imposed on a shareholder against his will, other than the payment of the nom inal value of the share in full, not even by an alteration of the articles of assocation. A resolution imposing additional obligations would therefore necessarily have to be by unanimous vote Additional obligations may be laid down in the articles at the time of incorporation ince all initial shareholders agree. New shareholders are bound by the additional obligations as well, since they voluntarily submit themselves to the articles by joining the company as a shareholder 3 7 To insert add it ional obligations by means of an alteration of the articles is only possible if all shareholders a gree. The articles may Cf. BLANCO FERNANDEZ, Vennootschapsrechtelijke werk ing van stemovereenkomsten, ff. and DE KLUIVER De ondememingsrechtelijke contractspraktifk: onderhandelen n de schaduw van de wet, Contrncteren: Tydschriff voor de tractspraktik 2001, p 4 ff. 32. Hoge Raad 30 June 1944, Nederlandse urispradentie 1944, 465. In practice, the commitment will be ensured by a penalty clause Hoge Raad 29 November 1996, Nederlandse Jurisprudentie 1997, 345. Crit MOHR, Hoe schatplichtig is de vennootschap aan het vnje contractenrecht, Cahenbundel, 1997, P. 223 ff. 34 A.o. KOELEMEIJER Redelijkhei en billijkheid n kapitaalvennootschappen, Deventer 2000, p.40f Imphcit Ondememingskamer 20 May 1999, Nederlandse Jhurispndentie 2000, 199, ndernemingsredt 2000, 72 note Blanco Femandez. The frst number is the provision for the Nv, thesecond for the Bv Materially both are equal. ASSER-MAELJER(NON) MANDATORY RULES IN DUTCH CORPORATE LAW 9 favour of the declaration of the dividend. He sought preliminary relief by asking the court to prohibit such a resolution to be taken and to prohibit the other shareholders to hold him to the agreement. The court held that since the aim of the distribution was to evade mandatory corporate law, the pre-meeting resolution was contrary to mandatory law and morality and as a consequence null and void. According to the court, this implied that Coster could not reasonably be held to vote in conformity with the agreement. Reversely, shareholder agreements may affect corporate decision-making.31 When establishing the validity of the voting agreement, the Supreme Court made a distinction between the commitment to the agreement and the exercised vote. It considered a vote to be valid even if it is in breach of the contract.32 Nevertheless, in recent case law the Court held that acting in breach of a shareholders agreement may lead to liability in tort.33 In the literature, it is contended that voting contrary to a shareholders agreement may cause a company s resolution to be in breach of reasonableness and fairness.34 Thus, a distinction is made between agreements with all shareholders partcipating and other agreements. Voting contrary to a shareholders agreement may also imply mismanagement.35 6 Freedom to complete or modify statutory rules - examples 6.1 Shareholders contributions of personal services or financing Art. 2:81/19236 BW states that no additional obligations may be imposed on a shareholder against his will, other than the payment of the nominal value of the share in full, not even by an alteration of the articles of association. A resolution imposing additional obligations would therefore necessarily have to be by unanimous vote. Additional obligations may be laid down in the articles at the time of incorporation, since all initial shareholders agree. New shareholders are bound by the additional obligations as well, since they voluntarily submit themselves to the articles by joining the company as a shareholder.37 To insert additional obligations by means of an alteration of the articles is only possible if all shareholders agree. The articles may 31. Cf. BLANCO FERNANDEZ, Vennootschapsrechtelijke werking van stemovereenkomsten, Ondernemingsrecht 1999, p. 148 ff. and DE KLUIVER, De ondernemingsrechtelijke contractspraktijk: onderhandelen in de schaduw van de wet, Contracteren: Tijdschrift voor de contractspraktijk 2001, p.4 ff. 32. Hoge Raad 30 June 1944, Nederlandse Jurisprudentie 1944, 465. In practice, the commitment will be ensured by a penalty clause. 33. Hoge Raad 29 November 1996, Nederlandse Jurisprudentie 1997, 345. Crit. MOHR, Hoe schatplichtig is de vennootschap aan het vrije contractenrecht, Cahenbundel, 1997, p. 223 ff. 34. A.o. KOELEMEIJER, Redelijkheid en billijkheid in kapitaalvennootschappen, Deventer 2000, p. 140 ff. 35. Implicit Ondernemingskamer 20 May 1999, Nederlandse Jurisprudentie 2000, 199, Jurisprudentie Ondernemingsrecht2000, 72 note Blanco Fernández. 36. The first number is the provision for the NV, the second for the BV. Materially both are equal. 37. ASSER-MAEIJER, o.c., nr. 98