FORCED BUY-OUT OF MINORITY SHAREHOLDERS UNDER DUTCH CARIBBEAN LAW
The court determines the purchase price
According to Netherlands Antilles law, a shareholder who holds at least 95% of the outstanding capital in a company (NV or BV) may initiate court proceedings to buy-out the minority shareholders. The articles of association may provide for another percentage, provided it is not less than 90%. Whether or not the majority shareholder has a particular reason to buy-out the minority is, in principle, of no relevance.
The court may decide to appoint an expert to advise on the determination of the purchase price of the shares. To establish the purchase price, the Court will take into account all relevant facts and circumstances which may determine the value of the shares, such as the balance sheet of the company, interim accounts, profit forecasts, the nature of the company etc.
Furthermore, it follows from case law of the Netherlands Supreme Court that the intrinsic value of the shares is in principle not the decisive factor in determining the purchase price, primarily because in that case the positive effect which future measures may have on the profitability of the company is not taken into account.
It also follows from case law that if the purchase price used in a recent public offer has to be used as a starting point for the determination of the value, unless the facts and circumstances point in the direction of a different value.
Finally, the Supreme Court takes into consideration the market price of shares which are traded on a stock exchange market.
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
