The notarial articles bind the company and every future shareholder; a shareholders' agreement binds only those who sign it. Dutch articles can impose obligations on shareholders since the 2012 Flex B.V. reform, and the blocking clause is optional. In a Luxembourg SARL, transfers to outsiders need 75% approval, which the articles can lower to 50%. Twelve clauses prevent most founder disputes, from deadlock to leavers to dispute resolution.
Articles and shareholders' agreement: why both matter
Every Dutch B.V. and Luxembourg SARL has articles of association, executed by a notary and filed with the register. Many also have a shareholders' agreement (SHA), a private contract between the shareholders and often the company. Founders tend to sign standard articles on day one and postpone the agreement. That works until the first disagreement, the first investor or the first founder who wants to leave.
The two documents do different jobs. The articles bind the company, its organs and every future shareholder, and they are public. The SHA is confidential and flexible, but it binds only the people who signed it. A clause in the wrong document can be unenforceable exactly when you need it.
This note covers the twelve clauses that founders most often regret leaving out, how Dutch and Luxembourg law treat each one in 2026, where each belongs and what goes wrong without it. A checker at the end lists the clauses your company needs.
Control
Reserved matters and deadlock.
Shares
Transfers, pre-emption, drag and tag, leavers.
People and money
Non-compete, information, dividends, share classes.
Life events and disputes
Death, divorce and how fights end.
What goes in the articles and what in the agreement
The test is simple: who must be bound, and what happens if someone breaks the rule?
| Articles of association | Shareholders' agreement | |
|---|---|---|
| Form | Notarial deed, filed and public | Private contract, confidential |
| Binds | Company, board, all present and future shareholders | Only the signatories |
| Breach | Act can be void or blocked (for example a transfer) | Damages, penalty clause, specific performance |
| Changing it | Shareholder resolution and notarial deed | Consent of the parties as agreed |
| Typical content | Share classes, transfer rules, majorities, board structure | Business plan, valuation, leaver terms, non-compete, deadlock steps |
Netherlands. The Flex B.V. reform, in force since 1 October 2012, gave Dutch founders wide freedom in the articles. Under Article 2:192 BW the articles can impose obligations on shareholders, such as a duty to provide financing, to offer shares in defined events or to refrain from competing, and those obligations then bind future shareholders too. Many Dutch practitioners therefore move the core of the SHA into the articles and keep only confidential commercial terms in the agreement. Both documents should say which prevails if they conflict, and the articles should be amended when the SHA changes.
Luxembourg. The 1915 law on commercial companies is less permissive in the articles but has recognised voting agreements between shareholders since the reform of 10 August 2016, subject to conditions. Shareholders may also waive voting rights temporarily or permanently. Transfer restrictions that must defeat a transfer to a third party belong in the articles; a breach of an SHA clause alone usually leads to damages rather than an invalid transfer.
Three founders of a Luxembourg SARL agree a right of first refusal in their SHA, but the articles keep the statutory approval rule lowered to 50%. One founder with 34% sells to an outsider with the approval of a second founder holding 33%. The articles are complied with, so the transfer is valid and the buyer becomes a shareholder. The third founder can only claim damages from the seller, and proving a loss is hard.
Law and practice: Dutch Civil Code, Book 2, Articles 2:192, 2:195 and 2:228 (Flex B.V. Act, in force 1 October 2012); Luxembourg Law of 10 August 1915 on commercial companies, as amended by the Law of 10 August 2016 (voting agreements, waiver of voting rights) and the Law of 7 August 2023 (technical corrections).
Reserved matters and deadlock
1. Reserved matters (veto list). By law most decisions in a B.V. or SARL are taken by the board, and shareholders decide by simple majority on the rest. A 30% shareholder therefore has little say unless the documents give it. A reserved matters list sets out decisions that need a qualified majority or the consent of a named shareholder: the annual budget, borrowing above a threshold, new shares, selling the business, hiring or firing managers, transactions with related parties and changes to the articles.
In the Netherlands the articles can require board decisions to be approved by the general meeting or by the holders of a class of shares (Article 2:239 BW), and the general meeting can give the board instructions. In Luxembourg the articles of an SARL can set higher majorities and require the approval of each class of managers. A list that is too long paralyses the company; one that is too short leaves the minority unprotected. Ten to fifteen items is typical.
2. Deadlock. A 50/50 company will one day face a decision on which the two sides cannot agree. Without a mechanism, the only exits are a court procedure or a dissolution. Common clauses run in steps: escalation to the founders, then mediation, then a buy-sell mechanism. In a Russian roulette clause one party names a price per share, and the other must either sell at that price or buy at it. In a Texas shoot-out both submit sealed bids and the higher bidder buys. Both work only if each side can finance a purchase; otherwise the wealthier shareholder wins.
Two founders each hold 50% of a Dutch B.V. with an annual profit of EUR 300,000. They fall out over expansion into Germany. The articles have no deadlock clause, so no budget is adopted and no dividend is declared. After a year one founder asks the Enterprise Chamber for an inquiry. The court appoints a temporary director with a casting vote, at the company's expense, while the inquiry runs. A two-page shoot-out clause would have ended the dispute in weeks.
Law and practice: Dutch Civil Code, Articles 2:228 (voting rights) and 2:239 (board, approval rights, instructions); Luxembourg Law of 10 August 1915, provisions on SARL management and shareholder resolutions.
Non-compete, information rights, dividends and share classes
7. Non-compete and non-solicit. A shareholder who sets up a competing business or hires away the team can destroy value faster than any vote. A shareholder non-compete is a contractual undertaking, typically for the period of the shareholding and one to two years after. Keep it proportionate in scope and territory, and remember that a founder who is also an employee may have a separate employment non-compete subject to employment law. In the Netherlands, an employment non-compete must be agreed in writing and needs specific justification in a fixed-term contract.
8. Information rights. By law shareholders receive the annual accounts and can ask questions at the general meeting. A minority investor wants more: monthly management accounts, the annual budget, access to the books and prompt notice of litigation or a breach of financing terms. Put information rights in the SHA and make the company a party to it.
9. Dividend policy. Shareholders often differ on dividends: the working founder wants to reinvest, the passive investor wants cash. A policy clause sets a target, for example 30% to 50% of net profit when cash and debt allow. In the Netherlands, distributions are subject to the balance sheet and distribution tests of Article 2:216 BW: the board must refuse approval if it knows or should foresee that the company will not be able to pay its debts afterwards, and directors and shareholders who knew can be liable. In Luxembourg, 5% of annual profit goes to the legal reserve until it reaches 10% of capital, and interim dividends need a basis in the articles. Dividend withholding tax is 15% in both countries before exemptions and treaty relief.
10. Share classes. Dutch law allows non-voting shares, which must carry a profit right, and non-profit shares, which must carry a voting right (Articles 2:228 and 2:216 BW). They are useful for employee participation, family succession and investors who want economic rights without control. Luxembourg law recognises tracking shares and allows different classes with different financial rights, and the articles can create beneficiary units (parts bénéficiaires), which are not part of the capital and carry the rights the articles give them. A liquidation preference for an investor belongs in the articles as a class right, not only in the SHA.
| Clause | Netherlands (B.V.) | Luxembourg (SARL) |
|---|---|---|
| Transfer restriction | Optional since 2012; statutory offer rule if silent | Approval by 75% of capital for outsiders; can be lowered to 50% |
| Non-voting shares | Allowed (must have profit right) | Different classes and tracking shares; voting waivers allowed |
| Shareholder obligations | Possible in the articles (Art. 2:192 BW) | Mainly contractual in the SHA |
| Distribution | Balance sheet and distribution test | Legal reserve 5% until 10% of capital; interim dividends per articles |
| Dividend withholding | 15%, exemptions available | 15%, exemptions available |
Law and practice: Dutch Civil Code, Articles 2:216 (distributions and distribution test) and 2:228 (voting rights, non-voting shares); Dutch Dividend Tax Act 1965; Luxembourg Law of 10 August 1915 on the legal reserve and tracking shares; Luxembourg Income Tax Law, Article 146 (dividend withholding); Dutch Civil Code, Article 7:653 (employment non-compete).
Death, divorce and dispute resolution
11. Death and divorce of a shareholder. Shares are property. On death they pass to the heirs, on divorce they may become part of a division of assets. In a Luxembourg SARL a transfer on death to persons who are not shareholders needs approval unless the articles provide otherwise. In a Dutch B.V. the articles can oblige heirs or a former spouse to offer the shares to the other shareholders at a fair price, and many do.
Marriage regimes matter. Since 1 January 2018 Dutch couples who marry without a prenuptial agreement have a limited community of property, so assets owned before the marriage, including founder shares, remain separate; shares acquired during the marriage may fall into the community. Luxembourg's default regime is a community of acquests. Founders from other countries bring their own regimes. An offer obligation in the articles, combined with a clear valuation formula and an insurance-funded buy-out for death, keeps the cap table in working hands.
12. Dispute resolution. Decide in advance where shareholder disputes go. In the Netherlands, the Enterprise Chamber (Ondernemingskamer) of the Amsterdam Court of Appeal handles inquiry procedures. It can order an investigation into the company's policy and, on request, immediate measures such as suspending a director, appointing a temporary director or transferring shares to a custodian. The separate statutory dispute resolution procedure (geschillenregeling, Articles 2:335 to 2:343 BW) allows the expulsion of a shareholder who harms the company or the exit of a shareholder whose rights are being prejudiced. A law adopted on 4 June 2024 moves that procedure to the Enterprise Chamber and widens its grounds; it enters into force on a date set by royal decree, so check whether it applies to your case. Parties can also agree arbitration, for example at the Netherlands Arbitration Institute, or choose the Netherlands Commercial Court for proceedings in English.
In Luxembourg, company disputes go to the district court sitting in commercial matters. Minority holders of at least 10% of capital or votes can ask the court to appoint an expert to review management operations. Arbitration has become more attractive since the law of 19 April 2023, which modernised the rules in the New Code of Civil Procedure and entered into force on 25 April 2023. Many SHAs combine escalation, mediation and arbitration seated in Luxembourg.
A Dutch investor holds 40% of a B.V. and the founder 60%. The SHA provides for arbitration, but the investor asks the Enterprise Chamber for an inquiry into a related-party contract signed by the founder. The founder argues that the arbitration clause excludes the court. Whether an arbitration clause in a shareholders' agreement can shut out the statutory inquiry procedure is uncertain, and the founder should not count on it. The clause should say clearly which disputes go to arbitration and which may be taken to the Enterprise Chamber.
Law and practice: Dutch Civil Code, Articles 2:335–2:343 (dispute resolution) and 2:344–2:359 (inquiry procedure); Act amending the dispute resolution procedure and clarifying admissibility in inquiry proceedings (bill 36.469, adopted on 4 June 2024); Dutch Arbitration Act in Book 4 of the Code of Civil Procedure; Luxembourg Law of 10 August 1915, Article 1400-3 (management expert); Luxembourg Law of 19 April 2023 on arbitration; Dutch Civil Code, Book 1 (limited community of property since 1 January 2018).
Which clauses does your company need?
The list updates with each answer. It is a checklist for the conversation with your notary and lawyer, not a substitute for drafting.
Which clauses does your company need?
Five questions. You see the must-have clauses for your situation, why each one matters and whether it belongs in the notarial articles or in the shareholders' agreement.
Articles bind everyone; the SHA binds signatories.
Every 50/50 company needs an exit mechanism.
Shares follow the people who build the business.
Courts, Enterprise Chamber or arbitration, chosen in advance.
Shareholders' agreements for a B.V. or SARL: frequent questions
Is a shareholders' agreement mandatory for a B.V. or SARL?
No. Only the notarial articles of association are mandatory. A shareholders' agreement is a private contract, but without one the statutory defaults apply, and they rarely fit a company with two or more active founders.
What should be in the articles rather than the shareholders' agreement?
Anything that must bind the company and future shareholders, or that changes how shares and votes work: transfer restrictions, share classes, pre-emption on issue, quorum and majority rules, and in the Netherlands obligations of shareholders under Article 2:192 BW. Commercial terms, valuation formulas and non-competes usually sit in the private agreement.
Can a Dutch B.V. have shares without voting rights?
Yes. Since the Flex B.V. reform of 1 October 2012 the articles can create non-voting shares, which must carry a profit right, and non-profit shares, which must carry a voting right. They are often used for employee or family participations.
Can Luxembourg SARL shares be sold freely?
No. A transfer to a non-shareholder needs the approval of shareholders holding at least three quarters of the capital. Since the 2016 reform the articles can lower that threshold to one half. Transfers between existing shareholders are free unless the articles restrict them.
How are shareholder disputes resolved in the Netherlands?
Through the Enterprise Chamber of the Amsterdam Court of Appeal in an inquiry procedure, which can order immediate measures, or through the statutory dispute resolution procedure for expulsion and exit. Parties can also agree arbitration, for example at the Netherlands Arbitration Institute.
What happens to the shares if a shareholder dies?
The shares pass to the heirs, subject to the articles. In a Luxembourg SARL, transfers on death to non-shareholders need approval unless the articles say otherwise. In a Dutch B.V. the articles can oblige heirs to offer the shares to the other shareholders. Without such clauses, you may end up in business with the heirs.
Can a leaver be forced to sell at nominal value?
A bad leaver clause can set a discounted price, but courts in both countries test whether it is proportionate. Clear definitions, a vesting schedule and a price that is not punitive make the clause easier to enforce.