Exclusion of a Shareholder and Contractual Dispute Arrangements

In the recent case from the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2026:1603), significant legal insights are shared regarding the expulsion of shareholders in business. This case, stemming from the acquisition of Inter-Psy by the Opos group in June 2025, emphasizes the consequences of shareholder behavior and contractual dispute resolution mechanisms.

The Case: Background and Conflict

Following the acquisition, conflicts quickly arose concerning the governance and financial situation of Inter-Psy. The indirect shareholder A, who held 15% of the shares through IP-Beheer, made a request for an inquiry, but the co-shareholders called for A's expulsion. This was primarily due to A's failure to comply with an indemnification obligation, leading to liquidity problems and even a bankruptcy petition from an affiliated landlord.

Legal Key Points

1. When does a contractual dispute resolution block legal expulsion?
   Article 2:337 paragraph 1 BW states that a contractual dispute resolution only blocks legal expulsion if it can lead to actual transfer within a foreseeable period. In this case, it was insufficient, as the agreement only contained an obligation to make an offer without a duty to take shares. This highlights a critical point: merely having a right to offer shares without the obligation to actually purchase them is not adequate.

2. The role of reasonableness and fairness (art. 2:8 BW)
   In an expulsion, the conduct of shareholders, including those of affiliated companies, is taken into account. Behavior through these companies is attributed to the shareholder themselves, as confirmed in the Funda ruling. This means that a managing director cannot escape responsibilities by hiding behind a holding company.

3. Bad leaver pricing provision (art. 2:340 paragraph 3 BW)
   The Enterprise Chamber considers contractual pricing provisions. In this case, there was a bad leaver clause where the buyout price amounted to 20% of the market value. This underscores the importance of clear pricing agreements in shareholder agreements.

4. Independent determination of price (art. 2:339 paragraph 3 BW)
   The Enterprise Chamber may determine the price itself if the agreement has a clear valuation criterion. In this case, a clear basis was found in the agreement that specified five times the average EBITDA, which meant that experts were not necessarily required.

5. Practical lessons for shareholder agreements
   It is crucial to make concrete and enforceable agreements about the transfer of shares and the conditions under which this can take place. Ensure that obligations to offer and accept shares complement each other. Insufficient agreements can lead to risky situations, as demonstrated here.

6. Risks associated with poor collaboration
   Anyone who knowingly jeopardizes the company risks expulsion at an unfavorable price. This case makes it clear that shareholders must take their responsibilities seriously.

Conclusion

The rulings of the Enterprise Chamber emphasize the need for entrepreneurs and their advisors to carefully consider the structure of their shareholder agreements. Ensuring clear contractual provisions and taking responsibilities seriously can prevent shareholders from coming into conflict over their shareholding.

Ruling

This blog post is based on ECLI:NL:GHAMS:2026:1603.