What is a shareholders' agreement?
A shareholders' agreement is a contract between the shareholders of a private limited company — and in practice almost always the company itself and its directors — in which they record their mutual rights, obligations, and agreements. The agreement supplements the articles of association and regulates all practical and commercial arrangements that do not belong in the articles or that you prefer to keep confidential. Unlike the articles of association, which are public through the Chamber of Commerce, a shareholders' agreement remains private. This makes it the ideal instrument for sensitive agreements regarding control, departure, financing, and the sale of shares.
Our lawyers will draft a shareholders' agreement for you that is not only legally watertight but also holds up at the moments that truly matter: during a conflict, an exit, or a restructuring.
When do you need a shareholders' agreement?
You need a shareholders' agreement as soon as there is more than one shareholder in a BV. This applies to the incorporation of a new BV with multiple founders, the entry of an investor or new shareholder, management participation or employee shareholding, and an acquisition where the selling party remains a shareholder in the new structure. But even if you have been working together for years without written agreements, it is high time. Experience shows that conflicts almost always arise at moments you did not arrange in advance: illness, divorce, death, a bid from a third party, or a difference of opinion regarding the direction of the company.
What is the difference between a shareholders' agreement and the articles of association?
The Articles of Association are the corporate legal constitution of your BV: mandatory upon incorporation, publicly available via the Commercial Register, and only amendable via a notary by a resolution of the General Meeting of Shareholders. The Shareholders' Agreement is an ordinary contract between parties: not mandatory, not public, and amendable without a notary as soon as all parties agree. In the Shareholders' Agreement, you may deviate from the Articles of Association, provided the company is also a party to the agreement. If the Articles of Association and the Shareholders' Agreement conflict, the Articles of Association generally prevail under corporate law — however, the Shareholders' Agreement can establish contractual claims for performance, penalties, and damages if a party acts in violation of the agreements made. Our lawyers ensure that both documents are aligned with each other and do not create conflicting obligations.
What do you regulate in a shareholders' agreement?
A shareholders' agreement can cover a wide range of topics. The most essential categories are the following. Regarding decision-making and control , you specify which board decisions require approval from the General Meeting of Shareholders, which voting ratios apply, and whether certain shareholders have a veto right. Regarding the sale and transfer of shares, you regulate the obligation to offer shares, the pre-emptive rights of existing shareholders, the price determination method, and the lock-up period. With a drag-along clause, a majority shareholder can require minority shareholders to sell their shares to a third party along with the shareholders. Conversely, a tag-along clause grants minority shareholders the right to sell their shares on the same terms. Regarding financing , you specify who is obligated to make additional contributions in the event of a need for additional financing, and under what conditions. Regarding personal circumstances , you regulate what happens in the event of the death, disability, divorce, or bankruptcy of a shareholder. Finally, a good shareholders' agreement always includes a dispute resolution mechanism and a clear exit scenario.
What is a drag-along and a tag-along clause?
These are two clauses that must be included in every shareholders' agreement. A drag-along clause —also known as a co-sale obligation—gives a majority shareholder the right, in the event of a sale of their shares to a third party, to require the minority shareholder to sell their shares along with them under the same conditions. This prevents a potential buyer from backing out because they cannot acquire all the shares. A tag-along clause —also known as a co-sale right—protects the minority shareholder: if the majority sells to a third party, the minority may join in under the same conditions. Without these clauses, a minority shareholder could unexpectedly be left with an unwanted new co-shareholder, or a majority shareholder could lose a deal because they cannot acquire all the shares. Our lawyers will tailor both clauses to your specific needs, including pricing and procedural steps.
What happens if a shareholder wants to withdraw or dies?
This is the most underestimated risk for private limited companies (BVs) with multiple shareholders. Without explicit agreements in the shareholders' agreement , a departing shareholder can, in principle, freely sell their shares to a third party, subject to the blocking provision in the articles of association. Upon death, the shares fall into the estate, and heirs—possibly the spouse or children of the deceased—can become shareholders in your company. In the event of divorce, shares can become part of the marital community and thus indirectly end up with a stranger via the division of assets. A well-drafted shareholders' agreement regulates all these situations: the obligation to offer shares, the valuation method, the payment term, and the question of who has the right of first refusal. Our lawyers also consider the tax implications of these scenarios, ensuring that the agreements are also workable in practice.
What is a 50/50 situation and how do you avoid an impasse?
A 50/50 structure —two shareholders each holding half of the shares—is one of the most common and, at the same time, most risky structures in the Dutch SME sector. As long as the collaboration proceeds smoothly, there is no problem. However, in the event of a fundamental difference of opinion, no one holds a decisive vote, and the company can grind to a complete halt. In such cases, the law offers the possibility of a dispute resolution mechanism via Article 2:336 of the Dutch Civil Code (expulsion) or Article 2:343 of the Dutch Civil Code (withdrawal), but these procedures are lengthy and costly. A shareholders' agreement can prevent an impasse by incorporating a tiebreaker mechanism : a casting vote for one of the shareholders on specific decisions, a mandatory mediation step, or a binding opinion by a designated third party. Our lawyers will advise you on which mechanism best suits your specific collaboration.
Can I draft a shareholders' agreement myself or download it from the internet?
Technically, you can draft a shareholders' agreement yourself or adapt a template agreement from the internet. However, experience shows that this rarely works out well when the agreement really matters. Template agreements are by definition generic and lack the clauses that are relevant to your specific situation, your industry, and your shareholder structure. Moreover, the terms of the shareholders' agreement must align seamlessly with your articles of association—an inconsistency between the two documents can be fatal to your position in the event of a dispute. A shareholders' agreement drafted in good times must hold up in bad times. This requires legal depth and scenario thinking, not simply filling in a template.
Do you also need a notary for a shareholders' agreement?
No. There are no statutory formal requirements for a shareholders' agreement : you do not need a notary. The agreement is legally valid as an ordinary private deed, signed by all parties. This is a significant advantage compared to amendments to the articles of association, which always require a notary. Do you wish to amend the agreement later? In that case, the consent of all parties suffices, without the intervention of a notary and without registration with the Chamber of Commerce. However, our lawyers advise always assessing the shareholders' agreement in conjunction with the articles of association and—if necessary—conducting an amendment to the articles of association simultaneously to avoid inconsistencies.
How much does it cost to draft a shareholders' agreement at MKBjuristen?
The costs for a shareholders' agreement depend on the complexity of your structure, the number of shareholders, the clauses to be regulated, and the extent to which the agreement needs to be aligned with existing articles of association or other contracts. After a brief intake, we will provide you with a transparent quotation. We work pragmatically: a good document does not have to be a novel, but it must cover all relevant scenarios. Contact us for a no-obligation estimate.
What if a shareholder fails to comply with the shareholders' agreement?
If a fellow shareholder fails to fulfill their obligations under the shareholders' agreement , several avenues are open to you. You can demand performance, whether or not combined with a penalty payment. You can claim damages based on breach of contract. If the agreement contains a penalty clause—and a well-drafted shareholders' agreement always does—you can invoke the contractual penalty without having to prove damages. In serious cases, you can seek dissolution of the agreement. In addition to contract law, corporate law offers supplementary protection: acting contrary to the principles of reasonableness and fairness under Article 2:8 of the Dutch Civil Code can lead to the annulment of resolutions pursuant to Article 2:15 of the Dutch Civil Code, and in cases of structural misconduct, an inquiry procedure can be initiated via the Enterprise Chamber. Our lawyers assist you in all these processes, from the initial formal notice to proceedings before the Enterprise Chamber.
How does it work at MKBjuristen?
We start with an intake in which we map out the structure of your company, your shareholder structure, your articles of association, and your wishes. Based on this, our lawyers draft a shareholders' agreement tailored to your situation — not a generic model, but a document built on the scenarios relevant to your partnership. In doing so, we pay attention to alignment with your articles of association, the tax feasibility of the exit provisions, the validity of any non-compete and non-solicitation clauses, and the practical functioning of the dispute resolution mechanism. The end result is an agreement you can sign with the confidence that you are prepared for whatever may come your way.
What is the difference between the shareholders' agreement and the articles of association?
The articles of association are the corporate legal foundation of the BV: they are public, are drawn up and amended by a notary, and apply to everyone involved with the company. A shareholders' agreement is a contract between the shareholders themselves. It is not public, can be flexibly amended, and may contain agreements that you would prefer not to include in the articles of association.
The downside of this flexibility is that, in principle, a shareholders' agreement is only binding between the parties. In the event of a conflict between the agreement and the articles of association, the statutory provisions may take precedence under corporate law, and contractual agreements do not always have binding effect on the company itself. Therefore, our legal experts draft the agreement and the articles of association in conjunction, so that they reinforce each other rather than contradict one another.
Is a shareholders' agreement mandatory and must it be done through a notary?
No. The law imposes no requirements on a shareholders' agreement, and a notarial deed is not necessary. You can record the agreements in a private agreement signed by the shareholders, and preferably also by the company. That is precisely the difference compared to the articles of association and the transfer of shares themselves, for which a notarial deed is mandatory.
Not mandatory does not mean unimportant. Precisely because there is no legal framework to fill the gaps, the quality of the agreement determines whether you are protected if things go wrong. We draft a private agreement that is legally sound and aligns with your articles of association, without unnecessary notary fees.
How do you amend a shareholders' agreement later?
A major advantage over the articles of association is that you can easily amend a shareholders' agreement: with the consent of the parties and without a notary. This makes the agreement suitable for arrangements that evolve with the company, such as a new investor, a changed division of tasks, or an adjusted dividend policy.
Please ensure that any amendment is recorded in writing by all parties, and that a new shareholder expressly accedes to the agreement. If you fail to do so, the shareholder will not be bound by the terms, and uncertainty will still arise. We therefore include an amendment and accession clause as standard.
What happens in the event of the death, illness, or departure of a shareholder?
This is one of the most important scenarios to arrange in advance, and it is precisely here that a proper provision is often lacking. Without agreements, shares could be inherited upon death by heirs who have no connection to the company, or a long-term incapacitated shareholder could continue to participate fully without contributing.
You prevent this with an obligation to offer shares upon death or disability, linked to a pre-agreed valuation method. This is often supplemented by a good leaver and bad leaver scheme, whereby the manner of departure determines the price at which the shares are acquired. In this way, you keep control with the people who actually run the company.
How do you arrange the transfer of shares and an exit?
One of the most important functions of the agreement is what happens if a shareholder wants or needs to exit. With an offer obligation and a blocking arrangement, you determine to whom shares may be offered and at what price. A drag-along obliges a minority to sell along if the majority finds a buyer, and a tag-along gives the minority the right to sell along under the same conditions.
Without these agreements, a sale of the company may fail due to a single unwilling shareholder, or a minority shareholder may be left with a new owner. Moreover, a pre-agreed valuation method and reference date are crucial, as otherwise disputes regarding the share price almost always arise.
What do you do in the event of a conflict or deadlock between shareholders?
Particularly with a 50/50 ownership structure, an impasse is lurking: if both shareholders block each other, decision-making comes to a standstill. A good agreement therefore includes a deadlock provision and a dispute resolution mechanism with a binding outcome, such as binding advice, arbitration, or a buy-sell mechanism.
The law provides for its own dispute resolution mechanism regarding the expulsion and withdrawal of shareholders (Articles 2:336 and 2:343 of the Dutch Civil Code), but this procedure is handled by the courts and takes time. A contractual arrangement is often faster and more predictable. We align the contractual route with the statutory options so that you do not get stuck the moment the conflict arises.
How much does a shareholders' agreement cost and how quickly can you get one?
We draft a custom shareholders' agreement for a fixed price starting from 99 euros, with clear information regarding costs upfront. You will receive a draft document first and only pay afterwards. The final price depends on the complexity: the number of shareholders, whether investors are involved, and how extensive the exit and dispute resolution provisions need to be.
During the free intake, we discuss your relationships, plans, and risks so that the agreement aligns with your actual situation and you do not pay for provisions that do not suit your business.
