A partner wanting out is one of the most common and most disruptive events in the life of a private company, and how it is handled determines whether the business continues smoothly or descends into a dispute that damages everyone in it. The outcome is decided far more by what was agreed at the beginning than by anything done in the moment, which is precisely why the moment a partner announces they want to leave is the moment everyone discovers whether the documents did their job.
Start with what was agreed
The first question is what the shareholders agreement and the articles say about exit. If they contain a proper mechanism, pre-emption rights, a valuation method, a process, then there is a path to follow and the argument is narrowed to its application. If they are silent, the departure becomes a negotiation with no agreed rules, which is where partnerships most often turn into disputes. Everything below is easier where the agreement did its work, as we describe in our note on shareholders agreements that actually hold.
Where the company is a Dutch BV and the documents say nothing, the Civil Code supplies an answer, and it is narrower than most partners assume. Article 2:195 of Book 2 of the Burgerlijk Wetboek opens with the words unless the articles provide otherwise and then sets out an offer regime: a valid transfer requires the shareholder who wants to dispose of one or more shares to offer them first to his fellow shareholders, in proportion to the number of shares each of them holds at the time of the offer. The same paragraph gives the seller a right he often does not know he has, because if he asks for it he receives from the co-shareholders a price equal to the value of his shares as determined by one or more independent experts. It also gives him a way out of a process that stalls: once it is established that not all the shares covered by the offer will be bought against payment in cash, he may transfer them freely within three months of that determination.
Almost every element of that regime can be altered, and the alterations are where the real terms live, which is why the deed of incorporation has to be read before a price is ever mentioned. The articles may exclude transferability altogether for a fixed period, and a transfer made in breach of that exclusion is invalid; a clause of that kind cannot be introduced without the consent of every holder of the shares it covers. The same article allows the articles to restrict transferability in some other way than the offer regime or the temporary exclusion, again on pain of invalidity, but any such arrangement must leave the departing holder a price equal to the value of his shares as fixed by one or more independent experts if he requires it. The articles may substitute a different price mechanism, and many do, yet a deviating price rule cannot be imposed on a shareholder against his will, and provisions of the articles on transferability do not apply where they make the transfer impossible or extremely onerous, although that escape carries its own exception: it does not rescue a shareholder from a fixed term exclusion or from a price rule by which he is bound.
Who may demand what, and against whom
Dutch law does not give a partner a general right to leave. It gives named remedies to named claimants, and the first question in a contested exit is which article is being invoked and against whom. The dispute section of Book 2 applies to the BV and the NV, unless the shares or the depositary receipts are admitted to trading on a regulated market or a multilateral trading facility. Within it, article 2:336a is the exclusion claim, and it belongs to the other side: one or more holders who alone or jointly provide at least one third of the issued capital may ask the Enterprise Chamber of the Amsterdam Court of Appeal to order a shareholder to transfer his shares, where by his conduct, whether or not in his capacity as shareholder, he harms or has harmed the interest of the company to such an extent that the continuation of his shareholding cannot reasonably be tolerated. The company itself cannot bring that claim, and neither can a subsidiary of it.
Article 2:343 is the mirror image, and the one a departing partner actually uses. A shareholder who is so harmed in his rights or interests by the conduct of one or more fellow shareholders that continuation of his shareholding can no longer reasonably be required of him may ask the Enterprise Chamber to order those fellow shareholders to take his shares over. On his request the Chamber may also order the company itself to take them, on the ground of conduct of fellow shareholders or of the company, so far as the rules on a company acquiring its own shares do not stand in the way. The Chamber may adjourn its decision for a period it sets, where it appears in the proceedings that the company or one or more fellow shareholders undertake to take measures that undo or limit the prejudice as far as possible, which turns the petition into leverage as well as a remedy.
Valuation is the hardest number
The price of the departing partner’s stake is where most exits stall, because the leaver wants the highest value and those remaining want the lowest, and both are looking at the same business. An agreed valuation method, set in advance, removes most of the heat; its absence means the parties argue not only about the number but about how to reach it. Where a method exists, whether book value, a multiple, or an independent expert, the exit has a spine. Where it does not, the valuation itself becomes a second dispute layered on the first.
Once a court is deciding, the machinery is fixed. If the request is granted the Enterprise Chamber appoints one or more experts to report in writing on the price, and no appeal lies against that appointment. Where the articles or an agreement contain provisions on how the value of the shares is to be determined, the experts must draw up their report in accordance with them. The Chamber can also dispense with experts: it may leave the appointment out where the parties agree on the valuation, and equally where the articles or the agreement contain a clear yardstick from which it can fix the price without more. That is the return on an agreed method, and it is measured in months saved and expert fees not incurred.
The date at which the shares are valued is not in the statute, and it is worth more than most clauses in the agreement. The Enterprise Chamber takes as its starting point that the reference date is the date of its own decision, or a practical date as close to it as possible to be set by the expert, and it has refused both to put that date back to a year of the applicant’s choosing and to bring it forward, directing the expert instead to the guidance for experts in the dispute regime that it publishes itself. A partner who withdrew from the business in substance three years before the petition is therefore valued on the company as it stands at judgment, not as he left it, which is why the reference date deserves more attention in the drafting than the multiple usually gets.
The time to agree how a partner leaves is when nobody is leaving. By the moment someone wants out, the terms are no longer a policy, they are a battleground.
Funding the buyout
Even with an agreed price, the remaining partners or the company have to find the money, and a buyout can strain a business that is otherwise healthy. The options, paying from cash, borrowing against the business, paying in instalments over time, each have consequences for the company’s finances and for the leaver’s security. A staged payment protects the company’s cash but leaves the leaver exposed to the company’s future; a lump sum does the reverse. Where external financing is used, it connects to the discipline in our note on building a bankable platform.
Where the company buys the shares itself rather than the partners buying them out of their own pockets, Dutch law puts a gate in front of the money and adds a tax consequence. The board decides on an acquisition of the company’s own shares, an acquisition of shares that are not fully paid is void, and the company may not acquire fully paid own shares for consideration where equity less the acquisition price falls below the reserves required by law or the articles, or where the board knows or should reasonably foresee that the company cannot continue to pay its debts as they fall due. The seller is not a bystander here: a transferor who knew or should have foreseen that outcome is liable to the company for the resulting shortfall, up to the acquisition price of his own shares, and the directors who knew or should have foreseen it are jointly and severally liable for it with statutory interest. On top of that, what a company pays on a repurchase of its own shares above the average capital paid up on them counts as proceeds for Dutch dividend withholding tax, other than where the purchase is for temporary investment, and the rate is 15 per cent, although withholding is dispensed with where the participation exemption applies to the benefits the recipient draws from the shares and the participation belongs to an enterprise he carries on in the Netherlands. That head of charge attaches to what the company itself pays out, so the two funding routes are not equivalent for a leaver outside that exemption, and the difference belongs in the price.
The tax position of the leaver
For an individual partner the tax treatment is settled by the size of the stake, not by the reason for the exit. A taxpayer has a substantial interest, an aanmerkelijk belang, where he holds, alone or together with his fiscal partner and directly or indirectly, at least 5 per cent of the issued capital of a company whose capital is divided in whole or in part into shares, and the same 5 per cent test runs through the other cases the article lists, including rights to acquire shares, profit certificates and voting rights. Income from a substantial interest is the combined amount of the regular benefits, dividends and the like net of deductible costs, and the disposal benefits, reduced by the personal deduction; the disposal benefit itself is the transfer price less the acquisition price. For 2026 the rate table charges 24.5 per cent on taxable income from a substantial interest up to 68,843 euro and 31 per cent above that.
A friendly price is not a tax price, and that catches more departing partners than the rate does. On a deemed disposal, a gift, an exchange or a sale at a non-arm’s-length price, the transfer price taken into account is the value in economic traffic, and the Tax Administration describes a non-arm’s-length price as one that an arbitrary third party would not pay, so a partner who accepts a visible discount to keep the peace can be taxed on value he never received. Where the exit runs the other way and produces a loss, a negative income from a substantial interest is set off against positive substantial interest income of the preceding year and of the six years that follow; where it cannot be used because the holder no longer has a substantial interest at all, he may ask for it to be converted into a tax credit, though not before the second year after the year in which the loss arose and not before the loss has been finally assessed.
Where the leaver is not an individual but a holding company, the participation exemption takes the place of that analysis. Benefits from a participation, together with the costs of acquiring or disposing of it, are left out of account in determining profit, and a participation exists where the taxpayer holds at least 5 per cent of the nominal paid up capital of a company whose capital is divided in whole or in part into shares, among the other cases the article sets out. The exemption is not unconditional. It does not apply to benefits from a participation held as an investment, nor to the costs of acquiring or disposing of such a participation, unless it is a qualifying investment participation, and it does not apply at all to a taxpayer treated as an investment institution. Whether a partner holds his stake personally or through a holding is therefore a question that has to be settled long before anyone wants to leave.
The terms beyond the price
A clean exit settles more than money. Restrictive covenants, whether the leaver can compete or solicit clients and staff, releases and warranties, the treatment of any loans between the partner and the company, and the tidying of guarantees the leaver may have given, all belong in the exit agreement. A departure that settles the price but leaves these open is a departure that will generate a second argument later.
The transfer itself is a formal act, and the paperwork is not optional. The issue and transfer of a share in a BV, or the transfer of a limited right over one, requires a deed executed before a civil-law notary who has his place of business in the Netherlands, to which the persons concerned are parties. The deed must state the title of the transaction and the way in which the share or the right was acquired, the name, forenames, date and place of birth, domicile and address of each natural person who is a party, the legal form, name, domicile and address of each legal person who is a party, the number and class of shares involved, and the name, domicile and address of the company whose shares they are. The board must also keep the company’s own register of shareholders, recording names and addresses, the date on which the shares were acquired, the date of acknowledgment or service, the class of the shares and the amount paid up on each. A settlement that is signed and paid but never taken to a notary leaves the leaver a shareholder.
If it turns hostile
Where the relationship has broken down and there is no agreed mechanism, the situation can reach deadlock, and the remedies are the ones we describe in our note on minority shareholder protection and deadlock: buy-sell provisions, statutory remedies, and in the worst case the courts. These are slow and expensive, which is the strongest possible argument for settling the exit terms, and the mechanism to reach them, long before anyone wants to use them.
The inquiry procedure, the enquête, is the instrument that opens the company up rather than the one that ends the dispute, and it carries its own entry requirements and its own preliminary step. For a BV or an NV with an issued capital of at most 22.5 million euro, holders of shares or of depositary receipts who alone or jointly represent at least one tenth of the issued capital, or who are entitled to shares or receipts with a nominal value of 225,000 euro, or such lesser amount as the articles provide, may ask the Enterprise Chamber to appoint one or more persons to investigate the policy and the course of affairs of the company, either in full or as to a part of it or a defined period. Above that capital figure the threshold drops to one hundredth. The same holding can therefore be enough to open an inquiry and not enough to exclude anybody, since an exclusion claim needs a third of the capital. And the applicants are inadmissible unless it appears that they stated their objections to the policy or the course of affairs in writing to the board and the supervisory board beforehand, and that enough time has since passed for the company reasonably to have had the opportunity to investigate those objections and act on them.
The Chamber grants the request only where well founded reasons appear to doubt correct policy or a correct course of affairs, and when it does it fixes the maximum amount the investigation may cost, which the company pays. At any stage of the proceedings it may order immediate provisions for no longer than the duration of the case, and where no investigation has yet been ordered it may do so only if, in its provisional judgment, those well founded reasons for doubt are present. That is the lever a blocked minority is really reaching for, because it works on the board and on the meeting while the underlying argument is still unresolved, and none of it puts money in the departing partner’s hands.
If you are facing this, we can help. Montclare handles exactly these situations for international businesses and families. Our services are set out on our services page.
This article is informational and does not constitute tax, legal or financial advice. The right course depends on the facts. Each engagement is subject to scope and applicable regulation.