Various proposals not yes discussed here

The prohibition of appointing Supervisory Directors besides a ‘one-tier Board’ will be deleted (Article 2:19 paragraph 1 proposed bill). Supervisory Directors being a legal entity are allowed to a limited extent (Article 2:19 paragraph 3 proposed bill).

For the NV and the BV the law determines who has the right to attend meetings (Article 2:129/229 proposed bill). Unfortunately, in this connection no attention is given to the holders of depositary receipts for shares. In the case of concurred depositary receipts (i.e. certificates released with the co-operation of the corporation) I would prefer to grant the holders of these too with the right to attend meetings unless provided otherwise by the Articles of Association.

Moreover, it is provided for the NV and BV that the shareholders’ register can be maintained by a third party under the responsibility of the Board, and when required in electronic form (Article 2:109/209 paragraph 5 proposed bill).

Transfer of shares listed at a stock exchange can also take place in accordance with the system common at that exchange or allowed by that exchange (Article 2:110/210 paragraph 6 proposed bill). This provision has not only improved in comparison with the old text but is now also applicable to the BV.

Finally, it is noted that a sentence is added to Article 2:36 paragraph 1 of the proposed bill making it possible that the Articles of Association of a legal entity can restrict means of communication such as telefax, e-mail and other means of text transmission communication which for the application of Book 2 Civil Code are considered as equivalent to a written statement. The idea behind this is that means of electronic communication are not always reliable. This is one of the reasons that there appears to be a need in practice for the option to restrict the use of this.

The proposed amendments which hopefully come into force in 2011 not only take into account the developments in the Netherlands, Aruba and Surinam but also the wishes and comments of the users of the current Book 2 Civil Code.

Karel Frielink
Attorney (Lawyer) / Partner

(14 December 2010)


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